SZVSO v Minister for Immigration

[2016] FCCA 1092

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVSO v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1092

Catchwords:
MIGRATION – Application to review decision of the Refugee Review Tribunal (now the Administrative Appeals Tribunal) – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), s.424A

Cases cited:
Minister for Immigration and Border Protection v Singh (2014) 308 ALR 280; [2014] FCAFC 1
Minister for Immigration and Border Protection v SZSRS (2014) 309 ALR 67; [2014] FCAFC 16
Minister for Immigration and Citizenship v Li (2013) 297 ALR 225; [2013] HCA 13
Minister for Immigration and Citizenship v SZRKT (2013) 302 ALR 572; [2013] FCA 317
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 219 ALR 27; [2004] FCAFC 263
NAHI v the Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10

Applicant: SZVSO

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3282 of 2014

Judgment of: Judge Barnes

Hearing date: 23 February 2016

Date of Last Submission: 13 April 2016

Delivered at: Sydney

Delivered on: 13 May 2016

REPRESENTATION

Applicant: In person

Counsel for the Respondents: Mr Kay-Hoyle

Solicitors for the Respondents: Clayton Utz

ORDERS

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

2. The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3282 of 2014

SZVSO

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for review of a decision of the Refugee Review Tribunal (now the Administrative Appeals Tribunal) dated 28 October 2014 affirming a decision of the delegate of the First Respondent not to grant the Applicant a protection visa. 

2. The Applicant, a citizen of Pakistan, applied for a protection visa on 20 June 2013.  In a statement lodged in support of the application the Applicant claimed he was a Shia Muslim whose family had for some time been subject to threats from unknown persons who demanded that the family close their imambargah (Shiite mosque) and majalis (Shiite prayer meetings) otherwise they would attack the imambargah.

3. The Applicant claimed that after they received such threatening telephone calls his family had informed the police, but that the police authorities did not pay attention and “prepared a fictitious report”.

4. The Applicant also claimed that on 3 January 2012 three unknown masked and armed men had entered his car and told him that they had made the phone calls demanding he close the imambargah and majalis because they hated Shiite prayer.  They told him not to inform the police of this incident.  Despite this threat, the Applicant claimed he and his family reported the incident to the police station and that a police officer later advised them that he would investigate the matter, search for the people responsible and take necessary action.

5. On 6 January 2012 a majalis was arranged at the Applicant’s imambargah.  At the request of the Applicant, the police attended and provided protection.  However he claimed that the next day a telephone caller threatened revenge on him if they held another majalis.  The Applicant claimed he again informed the police, but received no positive response.

6. The Applicant claimed that the family brought the situation to the attention of the trustees of other imambargahs who discussed the matter with the authorities in Rawalpindi.  The Applicant claimed he continued to receive threatening telephone calls and that, as the family had no confidence in the police, they hired security guards for protection. 

7. The Applicant claimed that on 26 February 2012 one of his brothers was kidnapped.  He claimed that the kidnappers sought a ransom and demanded that there be no future majalis and Shia prayers in the imambargah.  The Applicant claimed that the family accepted these conditions and made the ransom payment.  He claimed that his brother was released, but that thereafter his family was reluctant to go outside the house and attend to business.

8. The Applicant also claimed that on 12 May 2012 they received a phone call from kidnappers “and they introduced us and informed that we want to meet you and I was using tactics for it” (sic). 

9. He claimed that in October 2012 he came to Australia because his life was in danger.  While majalis were being held in the imambargah during Muharram that year, police provided protection.  He claimed that on 24 November 2012, there was a bomb blast at a majalis at the home of a relative in which three of his close friends were killed.

10. The Applicant claimed he returned to Pakistan on 23 January 2013 despite his family’s advice that his life was in danger.  He claimed that after three or four days he started receiving threatening calls “from such kidnappers”, so he returned to Australia.

11. In a written submission to the Department the Applicant’s then migration agent claimed that the Applicant feared the Taliban who were committed to exterminating Shiites and others who did not accept their interpretation of Islam and that the Taliban received income from kidnapping and terrorising wealthy people or organisations as had happened to the Applicant.  It was asserted that while his family enjoyed great respect and were seen by the community as leaders, as a high profile Shiite family his family was a prime target for Taliban interests.  

12. The adviser claimed that nowhere was safe for Shiites in Pakistan.  He provided supporting country information and photographs and x-ray reports identified in the Tribunal decision as being in relation to the Applicant’s younger brother’s broken leg.

13. The delegate recorded that at interview the Applicant had submitted additional information, including a claim that his chances of being harmed were “significantly heightened” on account of cumulative factors, being his long involvement in cattle farming in Rawalpindi, his position as director of the family business with responsibility for its overall operations and the prominence and reasonable value of his family’s farms.  

14. The Applicant also claimed to the delegate that in September 2012 while he was at one of the farms, unknown persons fired gun shots at one of his security guards.  He was unable to identify the shooters but claimed he felt that it was a religiously motivated attack as he received a phone call the next day in which the caller told him he would be killed if he did not change his religion.  He also claimed that two or three days prior to his arrival in Australia in October 2012 he had received another anonymous phone call threatening that he would be killed during the Shiite religious festival.  He returned to Pakistan after the festival, believing he would no longer be seriously harmed, but claimed he received additional threats and so returned to Australia. 

The Tribunal Review

1. The application was refused and the Applicant sought review by the Tribunal.  By letter of 15 August 2014 he was invited to a hearing on 11 September 2014.  There was no response to the hearing invitation (sent to the Applicant care of his migration agent).  A Tribunal officer telephoned the Applicant who advised that his migration agent was in hospital.  The Applicant indicated that he wished to attend the hearing.  At the hearing the Applicant confirmed that his migration agent was seriously unwell.  He was given a further month (but no longer) to obtain a new migration agent and was invited to an adjourned hearing on 13 October 2014. 

2. The Tribunal recorded that at the first hearing the Applicant also stated that his migration agent had some of his documents.  The Tribunal informed him that no documents had been provided to it and suggested that he should contact his agent’s office to obtain the documents.  The Tribunal recorded that the Applicant agreed he could do so or that he could obtain the documents from Pakistan.

3. According to the Tribunal, on 9 October 2014 the Applicant attended the Tribunal offices and advised an officer that he had recently appointed a new representative and wanted to have the hearing postponed.  A newly appointed solicitor/migration agent also sought a postponement of 30 days by letter dated and received 9 October 2014.  The Tribunal recorded that an officer of the Tribunal telephoned the new migration agent and explained that the Applicant had been advised a month earlier at the first hearing that he should obtain legal representation as soon as possible and also that the hearing would be held a month from the date of the first hearing.  The Tribunal also emailed the Applicant on 9 October 2014 reminding him that at the hearing on 11 September 2014 he had been told that the adjournment would be for a month, advising that the hearing would proceed on 13 October 2014 and that his request for a postponement was refused.

4. The Applicant appeared before the Tribunal on 13 October 2014.  The only evidence of what occurred in that hearing is the Tribunal’s account in its reasons for decision.  The Tribunal recorded that the Applicant advised that his new representative would be unable to attend.  However, when asked whether he wanted the Tribunal hearing to proceed by teleconference including the representative, he stated that he wished to proceed with the hearing.  The Tribunal recorded that it was agreed that the representative would be provided with a copy of the CD of the hearing and additional time to make submissions.  At the end of the hearing the Applicant indicated that he may need another month to obtain his documents.  He was advised that he had had several months to do so and that this had been discussed at the earlier hearing.  The Tribunal advised that it would send his representative a copy of the CD-ROM of the hearing and that he would be given an additional two weeks to provide submissions and further documents.

5. On 13 October 2014 the Tribunal sent the representative the CD-ROM and advised of the timeframe for provision of documents and submissions. 

6. However on 16 October 2014 the representative advised the Tribunal that his authority to act had been cancelled by the Applicant.  No further documents or submissions were received by the Tribunal.

The Tribunal’s Reasons for Decision

1. In its reasons for decision the Tribunal described the abovementioned procedural issues and summarised the Applicant’s claims to the Department, including his claims in the interview that he believed he had a heightened profile due to his status as a wealthy property owner.  It referred to the documents provided to the Department, including photographs said to be of the Applicant’s younger brother with a broken leg and x-ray reports relating to the broken leg. 

2. The Tribunal summarised the Applicant’s claims under the Refugees’ Convention as claims to fear harm because of his religion (Shia) and his wealth and status as a person who operated an imambargah on his property. 

3. The Tribunal accepted that the Applicant was a Shia from Rawalpindi and a relatively wealthy farmer and that a series of atrocities had been committed against the Shia community in Pakistan.  However, it did not accept that the Applicant had suffered harm in Pakistan.  It considered the Applicant’s evidence during the hearing was vague, evasive and inconsistent.  It was not satisfied that the inconsistencies in his evidence were due to his “mental anguish” as he had claimed.  The Tribunal considered the problematic nature of the Applicant’s evidence was due to the fact that he had manufactured his claims to fear harm in Pakistan in order to provide a basis to remain in Australia and that it was for that reason that he was unable to recall his claims when asked at the hearing. 

4. The Tribunal discussed inconsistencies in the Applicant’s evidence about threats and harm he and his family had experienced in Pakistan as follows:

   24. … As indicated in his statement to the Department, the applicant stated that “for a long time” some unknown persons had been threatening him.  However, when asked at the hearing about the threats, including when they commenced and how often they occurred, the applicant stated that it was 2012.  When asked when in 2012, the applicant then referred to the Imambargah and his family’s operation of it and claimed that he was constantly being warned to cease holding activities at the Imambargah.  When asked again when in 2012 the threats began, the applicant stated that he came to Australia secretly in 2012 and he cannot say exactly when the threats began.  When asked again about the threats and how many he had received and when they started, the applicant stated that he thinks it was the beginning of 2012 but he cannot recall exactly.  He lodged a complaint with the police a few times about the threats, but nothing happened.  When asked how long he had received threats before the persons who were threatening him and his family took any action, the applicant stated that he had been told not to have religious gatherings in the Imambargah.  When asked again about the details of the threats, the applicant stated that they called his house and his mobile a number of times and sometimes his mother answered and was frightened.  When asked again how long the threats had occurred before the persons took any specific action, the applicant then stated four or five months after the threats began they “came in front of me” with a gun and that happened “a couple of times”.  The applicant’s brother was then kidnapped.  When asked whether it was correct that the threats occurred for four or five months before his brother was kidnapped, the applicant agreed. 

   25. When asked when his brother was kidnapped, the applicant stated that this occurred “a little bit before the middle of 2012”.  The applicant then stated that he cannot say exactly because the situation was so difficult at that time.  When asked why he could not recall, the applicant then stated that it was the first couple of months of 2012.  When the Tribunal asked the applicant why he had changed his evidence, he then stated that when his brother was released they paid a lump sum to the kidnappers.  When asked again if he could think about his evidence and clarify when his brother was kidnapped, the applicant stated that he has a First Information Report (FIR) and it has the date on it and he can tell the Tribunal the date after he obtains the FIR.  The applicant stated that he gave the FIR to his lawyer who prepared the case.  When advised that the FIR has not been provided, the applicant stated that he does not remember the exact date his brother was kidnapped but it was in the third or fourth month of 2012.  When the Tribunal advised the applicant that he has given different dates to the Tribunal and he had stated in his statement to the Department that his brother was kidnapped on 26 February 2012, the applicant stated that all he remembers is there was a change of weather at that time.  When asked why he had remembered the date of this incident when he made his statement to the Department but he is no longer able to remember it, the applicant stated that he has been very confused and very stressed because his lawyer became unwell and he can no longer remember everything that happened.  When the Tribunal asked the applicant how long his brother was held, he stated that it was for two or three days and a large amount was then paid to secure his brother’s release.  When asked whether he had informed the police, the applicant stated that they did make a FIR but it was not lodged.  When the Tribunal advised the applicant that it appears that the police were informed if they had completed an FIR, the applicant stated that they had to complete an FIR “in case something happened” to his brother.  In response to the Tribunal’s comments that there is nothing about an FIR in relation to his brother’s kidnapping in his statement, the applicant stated that the police did not do anything and they told them that unless they know the names of the people they cannot do anything.  The police also told them that they would have to drive them to the area or pay for any taxis.  The Tribunal commented that although it accepts that the police force in Pakistan has some serious problems it is unlikely that they would not do anything if his brother had been kidnapped. 

   26. The Tribunal considers that the applicant’s evidence as discussed above is inconsistent in relation to integral and significant aspects of his claims.  Thus, although the applicant had stated in his statement to the Department that his brother had been kidnapped in February 2012 and he had been receiving threats for a long time, his oral evidence as to when his brother was kidnapped varied until he was reminded by the Tribunal that he had indicated in his statement that it was February 2012 that his brother had been kidnapped.  The Tribunal is not satisfied that this accords with his oral evidence to the Tribunal that he began receiving threats at the beginning of 2012 and they began four to five months before his brother was kidnapped.  Nor does the Tribunal accept that the applicant has satisfactorily explained why he would be able to recall when making his statement an important and significant incident such as when his brother was kidnapped but would be unable to recall when asked about it during the hearing.  Additionally, although the applicant had claimed in his statement that he had paid 30,000 ($3,000) rupees for his brother’s release, when asked about this during the hearing, the applicant stated that he paid the kidnappers 5 million rupees (approximately $45,000) for his brother’s release.  When advised of the inconsistencies in his evidence, the applicant stated that they had to continuously pay money and “$3,000 is nothing” and to save his life he also had to give false assurances. 

5. The Tribunal did not accept that the Applicant had satisfactorily explained the inconsistencies in relation to the amount the family paid to secure his brother’s release.  It found that the evidence in relation to the alleged threats and kidnapping raised serious concerns that the Applicant had manufactured his claims to fear harm in Pakistan.  It did not accept that the Applicant had satisfactorily explained why he would be unable to recall when his brother was kidnapped.  It found that he had altered his evidence about this because he had forgotten, until reminded by the Tribunal, what he had written in his statement.  The Tribunal also had regard to the absence of any mention of a first information report in the Applicant’s initial statement.  It was of the view that his evidence on this issue at the hearing indicated that he was attempting to manufacture evidence because he had forgotten what he previously claimed in relation to reporting to the police.  The Tribunal considered that the Applicant’s evidence in relation to these issues raised serious concerns that he had manufactured his claims about threats, his brother’s kidnapping and the payment of a ransom.

6. In addition, the Tribunal found similarly problematic issues in relation to the Applicant’s claims about other incidents, which it detailed (including in relation to the timing and number of threats; inconsistencies in claims he made about having had a gun held at his head on two occasions; why he had not remained in New Zealand (which he had visited in June 2012) if he had previously been threatened; why he had returned to Pakistan from Australia in January 2013; the fact that the claim to the Department about an incident in September 2012 when others were shot at and a security guard injured had not been mentioned by him in the Tribunal hearing (or in his earlier statement); and the fact that the claim about his brother’s shooting in May 2003 had not been included in his written statement to the Department).

1. The Tribunal did not accept the Applicant’s explanation for his failure to provide details of such significant incidents in his written statement or his explanation for failing to mention the September 2012 incident when asked at the Tribunal hearing about what occurred in Pakistan.  The Tribunal was of the view that the Applicant had been given considerable opportunity prior to the hearing to mention specific incidents and did not accept his explanation that he had not told the Tribunal about the incident because he was only responding to the Tribunal’s questions.  It found that the evidence in relation to this issue raised further serious concerns that his claims had been fabricated.

2. In addition, the Tribunal did not accept that the Applicant’s previous immigration history was consistent with his claims to have been threatened and shot at and that his brother had been kidnapped for ransom in Pakistan.  It had regard to his travel to and from Australia for business purposes from 2010 on and to New Zealand and Thailand, his return to Pakistan after such visits, and his delay in applying for protection after his return to Australia in January 2013.  It considered that the Applicant’s return to Pakistan for three months between October 2012 and January 2013 (in circumstances where he claimed that he had previously been threatened about activities at his imambargah, that he had a gun held to his head, that his brother had been kidnapped and that his security guard shot in the leg) was not consistent with his claim to fear harm in Pakistan, and that his earlier return to Pakistan from New Zealand in June 2012 (after the claimed threats and kidnapping of his brother) and his failure to seek protection in New Zealand at that time were inconsistent with his claims regarding such incidents.  The Tribunal also found that the Applicant’s delay in lodging the application for protection, in circumstances where he claimed to have fled Pakistan after staying for only four or five days on his return in January 2013, was inconsistent with his claim to fear harm.

3. The Tribunal accepted that the Applicant had a family and an established business in Pakistan, but not that he was waiting for the situation to “resolve”.  It was of the view that after travelling to Australia on temporary business visas since 2010, the Applicant sought a more permanent means of staying in Australia and that he had fabricated claims in an attempt to remain in Australia.  It did not accept that the fact he only stayed in Pakistan for four or five days on his last return was because he was threatened.  The Tribunal did not accept that the Applicant had been threatened or continued to receive threats in relation to activities at the imambargah or in relation to other Shia activities; that he had had a gun held to his head; that his brother or a security guard had been shot or that any other family members had been harmed.  It accepted there was an attack on another imambargah in Rawalpindi, but did not accept the Applicant’s claims at the hearing that his relatives were killed in this attack or that the family were “virtually imprisoned” and unable to operate their farming business due to fear.  The Tribunal was of the view that the Applicant had shown “a considerable tendency to alter and adapt his claims when he considered it convenient to do so”.  It did not accept that this was as a result of “mental stress” or because the Applicant’s first representative was unable to continue to represent him.  The Tribunal considered that it was because the Applicant had manufactured his claims and had difficulty recalling details in his statement to the Department when asked by the delegate during the interview and during the Tribunal hearing.

4. The Tribunal did not accept that the documents the Applicant had provided established that his brother was shot in the leg because he was a Shia and his family operated an imambargah.  It noted that they established only that the brother, at some time, sustained a broken leg.  It also had regard to the fact that the Applicant claimed he could provide additional documents and had had some six weeks after the first Tribunal hearing to do so, but had failed to provide any such documents.  The Tribunal accepted that the Applicant’s first representative had been hospitalised in relation to a serious illness and that although the Applicant appointed another representative, his services were subsequently cancelled.  However, it was satisfied that the Applicant was given ample opportunity to obtain any further documents.

5. The Tribunal continued:

   36. Having not accepted the applicant’s claims in relation to past harm, the Tribunal has considered whether there is nevertheless a real chance that the applicant will suffer serious harm upon his return to Pakistan.  In considering this issue, the Tribunal has had regard to the reports provided to the Department and to the independent evidence available to it in relation to the situation for Shias in Pakistan, including in Rawalpindi (see attachment).  The Tribunal accepts that the applicant is a Shia from Rawalpindi.  Although the Tribunal has no specific evidence in relation to the applicant’s financial status, it accepts that in Pakistan society he is relatively well off.  The Tribunal also accepts his evidence that he and his family have operated an Imambargah mosque on their property since 1962 which is utilised by the local Shia community on a weekly and monthly basis.  The applicant’s evidence in relation to the mosque indicates that the authorities have attended his property and provide protection to him, his family and other patrons attending the mosque.  The Tribunal does not accept that the applicant has been unable to practise his religion in Pakistan, including activities and religious events held at the family’s Imambargah.  The Tribunal accepts that the situation for Shias in Pakistan remains precarious.  However, as discussed with the applicant during the hearing, while the Tribunal accepts that there have been some incidents in Rawalpindi, the targeting of Shias in Islamabad and Rawalpindi has been relatively low level compared with some other parts of Pakistan.  As discussed with the applicant during the hearing there are millions of Shias in Pakistan, including in Rawalpindi and Islamabad.  The Tribunal accepts the applicant’s evidence in relation to an attack on an Imambargah in Rawalpindi which he claimed was one of the worst that Pakistan has experienced.  Given the relatively low number of incidents or targeting of Shias in Rawalpindi/Islamabad, the Tribunal is not satisfied that there is a real chance that the applicant would be harmed Pakistan (sic), now or in the reasonably foreseeable future.  Nor is the Tribunal satisfied that the applicant will be unable to continue the practise of his faith in Pakistan in the same manner that he has done in the past.  

6. The Tribunal was satisfied that, despite his lack of legal representation, the Applicant understood the hearing process and was able to present his claims to the Tribunal.  It was not satisfied that the problematic nature of his evidence was due to his lack of legal representation, being of the view that it was because the Applicant had manufactured his claims to fear harm in Pakistan.  It continued:

   37. … The Tribunal also considers that the applicant was given some four weeks to obtain alternative representation given the unfortunate medical condition suffered by his former representative and he was strongly advised at the first hearing to obtain alternative representation as soon as possible.  Given that the applicant waited until two business days before the scheduled date of the second hearing to do so, the Tribunal considers that it was reasonable to proceed to a second hearing.  The applicant was also given further opportunity after the hearing and the CD Rom of the hearing was sent to his newly appointed representative on the day of the second hearing.  Again, whilst it is unfortunate that this representation was withdrawn, the Tribunal is satisfied that the applicant was given the opportunity to obtain assistance with his matter.  The Tribunal is satisfied, in all the circumstances, that it has fulfilled its obligations pursuant to s.425 of the Act. 

7. Having considered all of the evidence, the Tribunal was not satisfied there was a real chance the Applicant would be specifically targeted or attacked as a result of the continued operation of his imambargah and his and his family’s continued participation in religious activities in Rawalpindi or that he was at a heightened risk due to his family’s wealth or the operation of the imambargah.  Nor was it satisfied, given the isolated nature of attacks against Shias (including during religious processions at imambargahs and shrines) that there was a real chance the Applicant would suffer serious harm as a result of any such attacks.  It found that the Applicant did not have a well-founded fear of persecution for reasons of his religion, his status as a Shia who owned property, or his continued operation of an imambargah on his property.  The Tribunal was not satisfied that the Applicant had a genuine fear of persecution or a well-founded fear of persecution if he returned to Pakistan now or in the reasonably foreseeable future.

8. The Tribunal also considered the complementary protection criterion.  It had regard to the fact that it had not accepted that the Applicant had suffered serious harm in Pakistan or that there was a real chance that he would do so in the reasonably foreseeable future, and was also not satisfied that he met the complementary protection criterion.

9. The Tribunal affirmed the delegate’s decision.

10. The Applicant sought review by application filed in this court on 10 December 2014.  There are two grounds in the application.  It is convenient to consider these grounds first before considering other issues raised during the hearing.

Ground 1

1. The first ground in the application is that the Tribunal “erred in finding that there was a relatively low number of incidents on (sic) targeting of Shias in Rawalpindi/Islamabad”.  The particulars to this ground are that the Tribunal erred in making such a finding given that no evidence was adduced on this topic.

2. The Applicant did not file written submissions.  He did not directly address this ground in oral submissions except to say that, insofar as the First Respondent referred to general information regarding Shias who lived in Pakistan, he was a particular person who was targeted specifically. 

3. This ground is not made out.  It is open to the Tribunal to have regard to independent country information of its own volition.  It is not limited to considering country information “adduced” by the Applicant.  In fact, the Applicant did provide independent country information to the Department (through his agent) and in its reasons the Tribunal expressly had regard to this information as well as to independent evidence available to it in relation to the situation for Shias in Pakistan, including in Rawalpindi, as referred to in an attachment to its reasons for decision. 

4. There is nothing in the evidence before the court to indicate that the Tribunal’s conclusions in relation to the frequency of incidents targeting Shias in Rawalpindi/Islamabad were not open to it on the material before it.  The selection of country information, the weight to be given to it and the inferences to be drawn from it are matters for the Tribunal (see NAHI v the Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11]-[13]). Insofar as the Applicant disagrees with the Tribunal’s assessment of the independent country information, he seeks impermissible merits review.

5. The Applicant also took issue with whether the Tribunal had taken into account events of 2013 in Rawalpindi.  The Tribunal had regard to what were then recent disturbances between the Sunni and Shia communities in parts of Punjab triggered by attacks during the November 2013 Muharram in Rawalpindi (in particular an attack on another imambargah), but found on the evidence before it that targeting of Shias in Rawalpindi had been relatively low level.  The issues that the Applicant raised are not indicative of jurisdictional error on the part of the Tribunal in relation to the manner in which it dealt with the independent country information.  Insofar as the Applicant disagrees with the Tribunal’s findings in relation to the relatively low number of incidents of targeting Shias in Rawalpindi/Islamabad, he seeks impermissible merits review. 

6. For the sake of completeness, I note that insofar as this ground might be seen as raising a contention that country information had to be put to the Applicant, there is no obligation to put country information to an Applicant for comment pursuant to s.424A of the Migration Act 1958 (Cth) (see s.424A(3)(b)). The only evidence before the Court as to what occurred in the Tribunal hearing is the Tribunal’s account in its reasons for decision. The Tribunal recorded that it discussed with the Applicant during the hearing its view that while it accepted there had been some incidents in Rawalpindi, the targeting of Shias in Islamabad and Rawalpindi had been relatively low level compared with other parts of Pakistan. It also recorded that it discussed with the Applicant the number of Shias in Pakistan, including in Rawalpindi and Islamabad. The Tribunal accepted the Applicant’s claim that there was an attack on another imambargah in Rawalpindi. There is nothing in the evidence before the court to suggest that the Tribunal in some way failed to raise dispositive issues with the Applicant during the hearing in relation to the situation for Shias in Rawalpindi.

7. In oral submissions, the Applicant also made reference to issues of relocation.  He claimed that the Tribunal had suggested that he could relocate easily to another city to avoid harm.  However it is apparent from the Tribunal reasons for decision that it proceeded on the basis that the Applicant feared harm in Punjab and would return to Punjab.  It did not make a relocation finding.  No jurisdictional error is established on this basis.

Ground 2

1. Ground 2 in the application is that the Tribunal erred in finding that there was no “real risk” of significant harm if the Applicant were to go back to Pakistan.  The particulars to this ground are that the Tribunal erred in considering the independent evidence in Attachment A to its reasons, in that it “failed to reconcile the conflicting expert evidence or to give reasons for accepting the evidence of the Department of Foreign Affairs and Trade”. 

2. The Applicant did not clarify the basis for this ground in submissions.  It is not entirely clear what is meant by the suggestion that the Tribunal “failed to reconcile conflicting expert evidence”.  It appears to be intended to be a reference to the totality of the independent country information contained in Attachment A to the Tribunal decision and perhaps also the press reports provided to the delegate.  It is the case that the country information referred to by the Tribunal (which considered the situation of Shias generally in Pakistan as well as in Punjab) did indicate that Pakistani Shias were the targets of violent attacks.  This was acknowledged by the Tribunal in its findings.  The material was also said to indicate that members of religious minorities may be at risk depending on the “individual circumstances of the case”.  However the Tribunal considered the Applicant’s individual circumstances.  The fact that the Tribunal accepted that the position for Shias was precarious, but did not accept that it was such as to demonstrate that in Rawalpindi/Islamabad there was a real chance that the Applicant would be harmed or that there were substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to Pakistan, there was real risk he would suffer significant harm, is not demonstrative of jurisdictional error.  In particular, it was open to the Tribunal on the independent country information before it to take the view that there was a relatively low number of incidents of targeting of Shias in Rawalpindi/Islamabad, notwithstanding the events during Muharram in November 2013 and the targeting of another imambargah.

3. Insofar as there is intended to be a suggestion that the Tribunal failed to give reasons for accepting particular country information, the Tribunal identified the basis for its conclusions by reference to particular country information relied upon.  It was open to the Tribunal to accept the information in the DFAT report bearing in mind that, as stated above, the selection of country information and the weight to be given to items of independent country information is a matter for the Tribunal.  I also note that the DFAT report post-dated the information provided by the Applicant’s former agent to the Department, much of which addressed the events of November 2013.  It was open to the Tribunal to give greater weight to the country information that suggested there was a lower risk in respect of sectarian violence in Punjab in the context of all of the country information before it, some of which did refer to a risk of violence towards Shias.  Ground 2, as pleaded, is not made out.

4. The Applicant contended in submissions (in reply) that what was in issue was not the general situation for Shias in Pakistan, but rather the situation for him personally.  However in considering the Applicant’s claims on the basis of his religion as a Shia, it was open to the Tribunal to have regard to independent country information in relation to the situation for Shias in Rawalpindi as it did.  Furthermore, contrary to the contention that the Tribunal failed to have regard to the particular circumstances of the Applicant, it accepted not only that he was a Shia from Rawalpindi but also, despite the absence of specific evidence in relation to his financial status, that in Pakistani society he was relatively well off and that he and his family had operated an imambargah mosque on their property since 1962 that was utilised by the local Shia community on a weekly and monthly basis.  However, the Tribunal also accepted the Applicant’s evidence as indicating that the authorities attended the property and provided protection to him and his family and other patrons attending the mosque in finding that it did not accept that he had been unable to practise his religion in Pakistan, including through activities and religious events held at the family’s imambargah.  The Tribunal considered whether there was a real chance the Applicant would be harmed in Pakistan or would risk significant harm in Pakistan on the basis of his religion in the reasonably foreseeable future having regard to the information before it.  The Tribunal also considered whether the Applicant would be able to continue to practise his faith.  It was not satisfied that he would be unable to practise his faith in Pakistan in the same manner that he had done in the past.

5. Beyond this, the Tribunal also addressed in some detail the Applicant’s claims about his particular circumstances, including his claims that he would be specifically targeted or attacked as a result of the continued operation of the imambargah, his family’s continued participation in religious activities, his claims about past events and his claim that he was at a heightened risk due to his family’s wealth or the operation of the imambargah.  However the Tribunal did not accept that the Applicant had suffered harm in Pakistan as claimed.  Rather, the Tribunal found, for reasons which it gave, that his claims about specific past incidents had been fabricated in certain respects.  Such findings were open to the Tribunal on the material before it for the reasons which it gave.  Contrary to the Applicant’s submission, it has not been established that the Tribunal failed to consider his specific position either in terms of the Refugees’ Convention criterion or the complementary protection criterion.  This ground is not made out.

The Applicant’s Wealth and Status

1. In the context of considering the grounds in the application, I raised with counsel for the First Respondent whether the Applicant’s claim about fearing harm as a member of a wealthy and prominent family was separate from the claim about his and his family’s religion and, if so, whether the Tribunal had adequately dealt with such claim.

2. The First Respondent addressed this issue in post-hearing submissions.  The Applicant, despite being given the opportunity to do so, did not file submissions in reply, although he did file an “affidavit” addressing other issues (as discussed further below).

3. In connection with his protection visa application the Applicant made claims about past incidents, including an incident involving the kidnapping of his brother and a ransom demand as well as about threats he claimed he and his family received.  However the claims about threats to the Applicant and his family were expressed in terms that made it clear that they were primarily associated with the presence of an imambargah on the Applicant’s family land and their religion as Shias.  Although the claim about the kidnapping of his brother was not expressly stated to be connected with the family’s religion it was made in the context of claims of threats to the Applicant based on his Shiite faith.  In any event, the Tribunal rejected the factual basis for the kidnapping claim. 

4. A written submission provided to the Department by the Applicant’s previous migration agent was framed in similar terms, with a focus on the risk to Shiites from the Taliban, although it also referred to the risk to the Applicant’s family of being targeted as a high profile and extremely wealth Shiite family.  The submission did refer to kidnapping and terrorising of wealthy people or organisations, but it did so in the context of claiming that this was precisely what had happened to the Applicant.  General claims were made in relation to the occurrence of extortion on highways in Pakistan and Afghanistan, but there was no suggestion that this had occurred to the Applicant or his family.  The country information provided by the Applicant’s adviser focused on problems between Shia and Sunni Muslims.

5. In her reasons for decision the delegate noted the Applicant’s claims that his family were wealthy and prominent.  In particular, she had regard to the fact that at interview the Applicant had referred to the family’s prominence and wealth in the context of asserting that his chances of being harmed were quite “significantly heightened” on account of such factors.  The delegate considered whether the Applicant was at risk of harm on account of his religion, wealth, prominence and land ownership in Rawalpindi, including whether he had a claim under the complementary protection criterion on the basis of an inability to earn a livelihood based on the claimed threats against him.  The delegate did not accept that such a claim was made out, given the Applicant’s evidence that the income from the family business supported his stay in Australia and his remaining family in Pakistan.

6. It is apparent from the Tribunal reasons for decision that it was aware of the Applicant’s claim that he may be subjected to kidnapping (as he claimed had occurred in relation to his brother) and extortion by reasons of his family, social position and wealth.  It described his claims in that respect in its reasons for decision.  It also understood that, relevantly, he claimed that he believed he had a heightened profile due to his status as a wealthy property owner. 

7. In its findings and reasons the Tribunal dealt, at some length, with its concerns in relation to the Applicant’s claims about past events which he attributed to his religion and/or his family’s wealth, prominence and involvement in operating an imambargah, in particular the kidnapping of his brother and other alleged threats to the Applicant and his family.  It rejected the Applicant’s claims about past events. 

8. Relevantly, in its findings and reasons the Tribunal not only rejected the claim that the Applicant or his family feared harm based on religion, but also made an additional finding that it was not satisfied that the Applicant was at heightened risk due to his family’s wealth or the operation of the imambargah.  The Tribunal made that finding in a context in which it had rejected the Applicant’s claims about past events, including his claim about his brother’s kidnapping and that he had to pay a ransom to obtain his brother’s release. 

9. Having made these findings, the Tribunal used them as the basis for its conclusions in respect of complementary protection.  In the circumstances of this case, given that the Tribunal had rejected the Applicant’s claims concerning past kidnapping and extortion by way of a ransom request and had not accepted that he had suffered serious harm in the past, it was open to it to proceed in the manner that it did.

10. The Tribunal’s obligation was to consider integers of claims that were raised squarely or clearly on the material before it (see NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 219 ALR 27; [2004] FCAFC 263). Having regard to the Applicant’s clarification to the delegate that his concern was that he was at “heightened” risk due to the family’s wealth or the operation of an imambargah and the Tribunal’s rejection of his claims about past threats and other claimed events, including the kidnapping and extortion claim, it has not been established that the Tribunal failed to consider any integer of the Applicant’s claims.  Rather, it engaged with the Applicant’s claims as they were put to it and as arising clearly on the material before it.  No jurisdictional error is established on this basis.

Adjournment Decision

1. The other issue raised by the Applicant in the hearing was a concern about the Tribunal’s decision not to adjourn the Tribunal hearing.  The Applicant clarified in oral submissions that his concern was the Tribunal’s decision in relation to the second Tribunal hearing. 

2. The First Respondent was given the opportunity to address this issue in post-hearing submissions and did so.  The Applicant filed an “affidavit” in reply which I have had regard to as submissions.  Relevantly, he claimed that given his first agent’s illness, a claimed difficulty in getting his file from the agent’s office and the appointment of the new agent (who was said to have sought an adjournment to get the Applicant’s file from his first agent), it was unreasonable for the Tribunal to refuse to adjourn the second hearing.  The Applicant referred generally to Minister for Immigration and Citizenship v Li (2013) 297 ALR 225; [2013] HCA 13 and Minister for Immigration and Border Protection v Singh (2014) 308 ALR 280; [2014] FCAFC 1.

3. The First Respondent also addressed the issue of whether it was unreasonable in the sense understood in Li and Singh for the Tribunal to refuse to adjourn the second hearing. 

4. To consider this issue it is necessary to have regard to what occurred at the first hearing, as well as the circumstances in which the Tribunal exercised its discretion not to adjourn the second hearing.  As indicated above, when the Applicant sought review by the Tribunal he was represented by his first migration agent who was appointed his authorised recipient.  On 15 August 2014 the Tribunal wrote to the Applicant care of this migration agent inviting him to attend a hearing on 11 September 2014.  In addition, the Tribunal advised the migration agent that he should provide a written submission setting out any claims made and maintained by the Applicant by 4 September 2014.  The Applicant was also asked to return a completed response to hearing invitation form.  It is apparent from the material in the Courtbook that the Applicant attended the hearing on 11 September 2014.  In its reasons for decision, the Tribunal noted that:

   In the absence of a response to the hearing invitation or to telephone messages left for the Applicant’s representative an officer of the Tribunal had telephoned the Applicant to ask him whether he was aware of the hearing on 11 September 2014 and the Applicant advised that the representative was unwell and had been hospitalised but agreed that he wished to attend the hearing.

   There is no suggestion from the Applicant that this is not a correct account of what occurred.

5. Further, the Tribunal recorded that at the hearing on 11 September 2014 the Applicant confirmed that his agent was seriously unwell.  He was given a further month to obtain another representative.  The Tribunal recorded that the Applicant was advised that he should obtain a representative as soon as possible as the Tribunal would reschedule the hearing for a month’s time, “but no longer”.  The Applicant also indicated that his former agent had some of his documents and the Tribunal advised him that although the application for review had been lodged some months earlier, no documents had been provided to the Tribunal.  The Tribunal recorded that it advised the Applicant that he should contact the office of his agent to obtain such documents and “the applicant agreed that he could do so or that he could obtain the documents from Pakistan”.

6. On 19 September 2014 the Tribunal invited the Applicant to the resumed hearing on 13 October 2014, again advising him that the Tribunal would only change this hearing date for good reason.  On 8 October 2014 the Tribunal sent an email to the Applicant at the email address he had provided referring to the fact that a further hearing invitation had been sent to him (posted to his home address as well as sent to his original migration agent, who remained his authorised recipient, notwithstanding that the agent’s registration as a migration agent had lapsed).  The email recorded that the Applicant had advised the Tribunal at the hearing on 11 September 2014 that his migration agent was too ill to assist him and that the Tribunal had adjourned the hearing to allow him time to engage a new migration agent.  The email indicated that the Tribunal had not received a hearing response from the Applicant and sought an immediate response as to whether the Applicant still wished to attend the scheduled hearing. 

7. On 9 October 2014 a different solicitor/migration agent wrote to the Tribunal indicating that the Applicant had approached him and advised that he was scheduled to appear at a hearing on 13 October 2014 and that his previous migration agent was no longer able to assist him because he was ill.  The agent sought an adjournment “to allow [them] to adequately prepare for our representation as [we] have only just been engaged by [the Applicant]”.  He sought 30 days to obtain all the information he required to represent the Applicant including accessing his file from the Department of Immigration.  The new agent did not tell the Tribunal that an adjournment was sought to get the Applicant’s file from his first agent. 

8. The new agent provided the Tribunal with an appointment of authorised recipient form dated 9 October 2014.  On the same day, the Tribunal sent a further email to the Applicant reminding him that at the previous hearing on 11 September 2014 he had been told that the hearing would be adjourned for a month to allow him time to appoint another representative, and advising that on that basis the hearing scheduled for 13 October would proceed and the request for a postponement was refused. 

9. In addition, the Tribunal recorded that on 9 October 2014 an officer of the Tribunal telephoned the new representative and, at the request of the Tribunal, explained that the Applicant had been advised a month earlier that he should obtain legal representation as soon as possible and that the hearing would be held a month from the date of the earlier hearing.  The representative indicated that he understood and would advise the Applicant.

10. The Tribunal recorded that the Applicant had appeared before it to give evidence and present arguments on 13 October 2014, but had advised that his representative would be unable to attend.  The Tribunal asked the Applicant whether he wished to have a teleconference and include the representative in the hearing but, according to the Tribunal (and the Applicant does not dispute this), the Applicant stated that he wished to proceed with the hearing.  It was agreed that the Applicant’s new representative would be provided with a copy of the CD-ROM of the hearing at its conclusion and given additional time to provide a submission. 

11. In addition, at the conclusion of the hearing, the Applicant indicated he may need another month to obtain his documents.  He was advised that the issue had been discussed over a month earlier and that he had had several months to provide documents, but had not done so.  He was advised that the Tribunal would write to his representative with a CD-ROM and that he would be given an additional two weeks to provide any submissions and further documents. 

12. The Tribunal wrote to the Applicant’s new adviser in these terms on 13 October 2014.  However on 16 October 2014 the new representative indicated that the Applicant had withdrawn his authorisation, that his authority to represent the Applicant and to receive communication from the Tribunal on his behalf had been cancelled and that he was no longer acting in that matter.  The Tribunal recorded that no further documentation was provided by the Applicant. 

13. The Applicant took issue with the fact that the hearing in October 2013 had not been adjourned in circumstances where he claimed he did not have legal representation or guidance at that time and (as he claimed in his post-hearing affidavit) where he did not have his file from his first agent because that agent had been hospitalised. 

14. However, having regard to the material before the court, in particular, the Tribunal’s explanation of what occurred at the two hearings, there is nothing to indicate that the Applicant could have been under any misconception or misunderstanding.  The Tribunal made it clear that it was granting him only a month’s extension to get representation as quickly as possible and that it would not extend the time for the hearing in October 2014, except, as it advised in its hearing invitation of 19 September 2014, for “good reason”.

15. There is nothing in the material before the court to suggest that the Applicant misunderstood the constraints imposed on him.  Rather, it appears that his new adviser was only appointed on or shortly before 9 October 2014 and that the adjournment was sought on that date (some four days before the scheduled hearing), without any explanation to the Tribunal of why it had taken the Applicant so long to contact the representative, who advised the Tribunal that he had only just been engaged by the Applicant.  There is no evidence that the Applicant gave the Tribunal the explanation he now seeks to provide about earlier unsuccessful attempts to engage other agents. 

16. In all the circumstances it has not been established that it was unreasonable for the Tribunal to proceed on the basis of the clear statement it made at the first hearing.  The evidence before the Tribunal was that the Applicant sought an adjournment in circumstances where he had engaged a representative very close to the date of the adjourned hearing, notwithstanding the Tribunal’s prior advice in that respect.  He had also acknowledged to the Tribunal at the first hearing that if he could not get copies of documents from his first agent he could get them from Pakistan. 

17. These considerations are reflected in the reasons given by the Tribunal in relation to the Applicant’s claims about his lack of legal representation and his request for an adjournment. 

18. The Tribunal referred to the fact that the Applicant was given some four weeks to obtain alternative representation and was strongly advised at the first hearing to do so as soon as possible, but that he waited until two business days before the date of the second hearing to engage a legal representative.  It was in those circumstances that the Tribunal formed the view that it was reasonable to proceed to a second hearing.  The Tribunal gave the Applicant the opportunity at that hearing to have the representative participate by way of teleconference.  This opportunity was not taken up by the Applicant.  Importantly, the Tribunal also provided a copy of the CD-ROM of the hearing to the adviser after the hearing and allowed a further two weeks for post-hearing submissions and documents.

19. The Tribunal’s approach to the adjournment application (and the time for provision of further documents) was one that was within its “decisional freedom” in the sense considered by French CJ in Li at [28] and is not such as to amount to the unreasonable exercise of its discretion in such a way as to found a jurisdictional error (see Gageler J in Li at [24]). The Tribunal did not come to a conclusion that was so unreasonable that no reasonable decision-maker could have come to it. There was an “intelligible justification” given in its reasons for its refusal to grant a further adjournment (see Singh at [47]). It cannot be said that its decision was arbitrary or capricious or lacking in common sense or indicative of a lack of procedural fairness (also see Singh at [43]-[52]).

The Applicant’s “Documents”

1. In the course of the hearing, the Applicant also raised with the court a claim that he had given a number of documents to his first migration agent.  He contended that the Tribunal had not considered these documents.  He conceded that he did not know whether the agent had given these documents to the Department or the Tribunal.  He referred to medical reports from doctors in Pakistan in relation to family members, and police reports and first information reports in support of his application, including a police report said to be in relation to the murder of his lawyer in Pakistan.  He claimed that he had no idea whether these documents were submitted or not but that, if they were, the Tribunal had failed to have regard to such evidence.

2. At the hearing, counsel for the First Respondent suggested that the proper and prudent course would be for the Minister to check the materials in the departmental and Tribunal file to ascertain whether there was any record of such evidence having been provided to the Department or the Tribunal. 

3. After the hearing the First Respondent filed an affidavit sworn by Laura Adina Jacobs on 15 March 2016 advising that she had inspected the files and images in the departmental and Tribunal CD-ROM to ascertain whether copies of any medical reports, police reports or photographs were contained within them.  No police or medical reports were located.  However, Ms Jacobs attached to her affidavit copies of 10 photographs located on the departmental CD-ROM which were attached to an email from the Applicant’s first representative sent to the Department on 30 November 2013 (a copy of which appears in the Courtbook).  These photographs were electronically tagged and appear to depict the bombing of a building and what may be inferred to be photographs of victims of such an event.  The email of 13 November 2013 merely referred to the provision of a late submission and what are described as “some graphic pictures”, but there is nothing in the adviser’s submission to suggest that these additional photographs related specifically to the Applicant or his family.  The Tribunal considered the claims about recent sectarian violence in Rawalpindi.  In addition, contained in the Courtbook are some photographs of what was said to be the Applicant’s brother with what is said to be a broken leg.  This material was considered by the Tribunal in its reasons for decision.

4. On the basis of the evidence in Ms Jacobs’ affidavit I am not satisfied that further material was provided to the Department or the Tribunal in the nature of medical records and police reports.  I note also that when this issue was raised with the Tribunal by the Applicant, the Tribunal advised him that no documents had been provided to it as at 11 September 2014.  The Applicant responded that he could contact the office of his representative to obtain the documents or he could obtain the documents from Pakistan.  It is apparent that by the time of the hearing in October 2014 the Applicant had not provided documents.  In the course of the hearing, the Tribunal also advised the Applicant that, insofar as he claimed that he gave a first information report to his agent in relation to the kidnapping of his brother, no first information report had been provided.  He sought further time to provide further documents.  The Tribunal allowed him a further two weeks to provide further documents or written submissions. 

1. Moreover, insofar as there was any suggestion that the Tribunal erred in failing to mention the 10 photographs provided to the Department by the Applicant’s representative in its reasons for decision, this is not indicative of jurisdictional error.  It was not obliged to refer to every item of evidence and it cannot be said that this was critical evidence in the sense considered in Minister for Immigration and Citizenship v SZRKT (2013) 302 ALR 572; [2013] FCA 317 and Minister for Immigration and Border Protection v SZSRS (2014) 309 ALR 67; [2014] FCAFC 16.

2. As to the more general claim that the Tribunal failed to consider medical reports or police reports there is no evidence that such information (apart from in relation to the brother’s broken leg) was provided to either the Department or the Tribunal, as the Tribunal recorded that it informed the Applicant.  Nor is there any suggestion that the Applicant provided such documents after the Tribunal hearings, despite being given the opportunity to do so.  The Tribunal considered the evidence about the broken leg.  No jurisdictional error is established on this basis.

3. Finally, in his post-hearing “affidavit” the Applicant claimed that he had been illegally detained by the Department (possibly on the basis that he was perceived to be working).  These proceedings, however, are concerned only with the Tribunal decision. 

4. It is not clear whether the Applicant’s claim is that his bridging visa was cancelled or that he has been refused a further visa.  Nor is there any evidence that he has sought Tribunal review of any such decision.  It appears he has the assistance of the “Australian Multicultural Charity” (a representative of which attended the hearing).  If the Applicant has such concerns there may be avenues open to him.  However these are not matters that are the subject of or can be resolved in the present proceedings. 

5. As no jurisdictional error has been established on any of the bases contended for by the Applicant or arising on the material before the Court the application must be dismissed.

I certify that the preceding eighty-six (86) paragraphs are a true copy of the reasons for judgment of Judge Barnes

Associate: 

Date:  13 May 2016