SZIWX v Minister for Immigration & Anor [2009] FMCA 92 (16 February 2009)

Last Updated: 18 February 2009

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIWX v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 92

MIGRATION – Application for review of second RRT decision – applicant a citizen of Pakistan – where applicant raised claims of recent threats by the Taliban but failed to support his claims with evidence – claims ultimately rejected by Tribunal – whether Tribunal obliged to ensure applicant understood that the fresh claims may not be believed – whether this fact was “hidden” from the applicant – where Tribunal considered whether any Convention related reason why relocation would not be possible – whether Tribunal erred in its interpretation and application of the test for internal relocation.

Migration Act 1958 (Cth), ss.425(1), 417

SZIWX v Minister for Immigration & Anor [2008] FMCA 368 SZBEL v Minister for Immigration & Anor [2006] HCA 63; (2006) 228 CLR 152 Minister for Immigration v Applicant A125 of 2003 & Anor [2007] FCAFC 162; (2007) 163 FCR 285 SZDFZ v Minister for Immigration & Anor [2008] FCA 390 Abebe v The Commonwealth [1999] HCA 14; (1999) 197 CLR 510 Applicant S214/2003 v Refugee Review Tribunal [2006] FCAFC 166 Randhawa v Minister for Immigration [1994] FCA 1253; (1994) 52 FCR 437 SZIED v Minister for Immigration & Anor [2007] FCA 1347

Applicant:

SZIWX

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2262 of 2008

Judgment of:

Raphael FM

Hearing date:

9 February 2009

Date of Last Submission:

9 February 2009

Delivered at:

Sydney

Delivered on:

16 February 2009

REPRESENTATION

Counsel for the Applicant:

Mr L Karp

Solicitors for the Applicant:

Legal Aid Commission of NSW

Counsel for the First Respondent:

Mr T Reilly

Solicitors for the First Respondent:

DLA Phillips Fox

ORDERS

(1) Application dismissed.
(2) Applicant to pay the First Respondent’s costs assessed in the sum of $5,000.00.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 2262 of 2008

SZIWX

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant in this matter, which comes before me for the second time (see SZIWX v Minister for Immigration & Anor [2008] FMCA 368), is a citizen of Pakistan who arrived in Fremantle on 4 September 2005 on the livestock vessel Maysora. He did not return from shore leave and was declared a deserter. On 6 October 2005 he applied for a protection (Class XA) visa. On 15 December 2005 a delegate of the Minister refused to grant a protection visa and on 9 January 2006 the applicant applied for a review of that decision from the Refugee Review Tribunal. The first Tribunal considered the application and held a hearing which the applicant attended. It also sent the applicant letters pursuant to ss.424 and 424A Migration Act 1958 (Cth) (“the Act”).
   On 11 April 2006 the Tribunal determined to affirm the decision of the delegate and handed that decision down on 6 May 2006.
2. The decision of the delegate [CB 57-64] recites that the applicant was a resident of a village near Swat in the northwest frontier province of Pakistan. The convention grounds upon which he claimed to have a well-founded fear of persecution was one of political opinion in that he espoused views about women’s rights in a predominantly highly conservative and Taliban infiltrated area of Pakistan which were anathema to an organisation known as TNSM. The applicant claimed that he was in danger from this organisation should he return to his native village. The delegate’s decision found at [CB 63] states:
   • “The applicant’s family remains in the family home in Kavdari village, NWFP. Two of his three children are of school age and attend school. There is no evidence before me to indicate that the applicant’s family have been threatened or that they have faced mistreatment from Tehreek-e-Nifaz-e-Shariat-e-Muhammadi supporters during the applicant’s absence from home.
   • I note that the applicant claims he has opposed Tehreek-e-Nifaz-e-Shariat-e-Muhammadi for a considerable period. He has travelled to Australia on at least 4-5 occasions since 2003, and has not previously sought asylum. The applicant has also travelled to the following countries – Uruguay, Spain, South Africa, and Egypt – all of which are signatories to the United Nations Convention on Refugees, and has not sought protection (5:2).
   • I consider that the applicant’s delay in seeking protection over this period of travel outside of Pakistan, is a strong indicator that he does not hold a fear of persecution upon return to Pakistan. The applicant has claimed he has been under the threat of being killed for several years, yet he has delayed seeking protection, particularly when he has travelled to Australia on several occasions since 2003, the period which is relevant in terms of the claimed threat from TNSM.
   • Against this background, I am not satisfied that the applicant faces persecution from supporters of Tehreek-e-Nifaz-e-Shariat-e-Muhammadi or similar groups upon return to Pakistan in relation to his religious beliefs. The Pakistan government has committed itself to the eradication of such terrorist groups, and is taking steps to protect its citizens and to disband such groups. That the applicant remained safe from harm during the relevant periods in which he resided in Pakistan is evidence that he was not being targeted for harm by Tehreek-e-Nifaz-e-Shariat-e-Muhammadi. He has stated that he last received a warning that he would be killed in January 2000, yet he has not feared returning to Pakistan after each of his journeys after that time.”
3. When the applicant sought review of the delegate’s decision he provided by way of corroborating evidence concerning his involvement in the Female Human Rights Organisation (“FHRO”), a membership card from that organisation and also a membership card from the political party Pakistan Tehreek-E-Insaf. The Tribunal noted in its findings and reasons [CB 161], “a decision maker does not have to have rebutting evidence available before he or she can lawfully hold that a particular factual assertion by an applicant is not made out.” It then goes on to discuss at some length the two documents. It came to the view in regard to the membership of the political party that the applicant had misdescribed the name of that party and because of that misdescription was not aware of the different character of the two organisations that the Tribunal found existed. It considered that the membership card was a fake. The Tribunal then turned to the membership card of the FHRO. It considered that document was false and:

“as this document is false the Tribunal finds that all the applicant’s documents are false. The Tribunal also finds that the applicant’s evidence is not credible in this regard and does not accept that the applicant was a member of FHRO or interested in female human rights or other human rights issues including the poor.” [CB 163]

4. The Tribunal then made reference to some inconsistencies in the applicant’s evidence relating to his career as a seaman and found a three month period unexplained:
   • “The Tribunal finds in this regard that the applicant’s inability to explain the times he sailed, and the gaps between, shows that the applicant was not recounting the truth. This is supported by the applicant not providing the details in writing, when requested to by the Tribunal. On the basis of this and other findings, the Tribunal finds that the applicant is not credible and it rejects all his claims.” [CB 163]
5. In my decision upon the review of the Tribunal’s findings [CB 173–181] I was unable to find any jurisdictional error in relation to the findings in regard to the political party membership card but concluded that the Tribunal’s views about the FHRO document were based upon a mistake of fact saying at [CB 181]:
   • “The Tribunal made a mistake of fact about the applicant’s designation of himself as “In Charge”. Coming to a mistake of fact is not a jurisdictional error. But if you are going to base a dispositive finding upon a mistake of fact, then there is no way that an applicant can expect to be able to respond to it unless the mistaken fact is put to him. In this case I am of the view that in order to comply with the requirements of procedural fairness as interpreted by the High Court in SZBEL, the Tribunal was under an obligation to clarify to the applicant its concerns that he was a person “In Charge” and that this was inconsistent with the evidence that he had previously given. Because of the importance of this finding by the Tribunal as to its general conclusions as to the applicant’s credibility, I do not believe it would be safe to allow the decision to stand.”
6. When the matter came before a second Tribunal the Tribunal said to the applicant:
   • “T: I’ve carefully read your files, so I believe I have a reasonably good understanding of you claims. At this hearing I will only raise points on which I would like further clarification or more detailed information and I will not necessarily cover everything you claim in detail. The format for the hearing is my asking questions, some general and some more specific, and your answering these carefully and truthfully. Clearly, if I find you’ve been untruthful about one matter, I may be inclined to conclude that you’ve also been untruthful about another matter even if this isn’t necessarily the case, so please tell the truth... After we finish discussing your case I will ask your adviser if there are any areas he would like me to look at more closely or if there are any particular points to note.” [T3]

The Tribunal then went on to question the applicant about his life as a seaman before at [T11] saying:

“T: You lodged your protection visa application with the department on 7 October 2005, you attended a Tribunal hearing on 15 February 2006 and the Tribunal differently constituted made its decision on 11 April 2006. Are there any new circumstances, developments or other matters that have emerged since then as to why you believe you’re a refugee?
A: In my previous appearance with the Tribunal the situation was not as worse as it is now and it has been proved and that was the reason I decided to emigrate.
T: And has been what, sorry?
A: During this time the situation was not as worse as it is today and that has been proved.
T: So is there anything else you want to say about what has happened since you last appeared before the Tribunal and completed your protection visa application?
A: About four months ago a group of Taliban came to my home and inquired about me whether I’m there or not. Then...(not transcribable)...distributed some pamphlets, that if somebody see him he should be killed. My parents already knew about this situation but they didn’t inform me because they were thinking that since I’m living in a foreign country so that would be a big burden on me. But in the last one month they informed me of the whole thing that is happening there.
T: Have you been involved in any political activities of any sort either related to Australia or Pakistan, or have you been involved in any women’s rights groups either in Australia or Pakistan since you arrived in Australia in September 2005?”

The Tribunal did not question the applicant any further about the threats from the Taliban. At the end of the hearing there was the following exchange between the Tribunal and the applicant’s representative:

“T: Okay. Well, thank you for that. Adviser, are there any questions you want me to put to the applicant or are there any particular points you would like to make to me?
Adviser: Member, as long..(not transcribable)..satisfy yourself as to his claim as refugee, if there are any issues at all that you believe I can assist, member, in resolving this issue of his refugee status I’ll be happy to address them. From observing the hearing I have not been able to pick up any serious issues that you may have at this point in time but maybe..(not transcribable)..
T: Well, everything is before me and I’m inviting you to – questions you would like me to put to the applicant. Whether there’s any things that you would highlight; this case has been before us for a long time. Many points have been made but it’s an opportunity to make any final new points.
Adviser: ..(not transcribable)..that’s all the questions there are, I’ve got none for him.” [T22]

7. In its decision record the Tribunal refers to the applicant’s evidence concerning the recent action by the Taliban in its recital of the hearing at [CB 280] at paragraph 27 and in its findings and reasons the Tribunal refers to the claim at [CB 287] at paragraph 51:
   • “The applicant has, however, made a new claim. He claims that about four months ago, a group of Taliban went to his home and asked about him and they produced a leaflet saying that anyone [sic] see the applicant, they should kill him. However, while the applicant has since, lodging his protection visa application, clearly shown that he appreciates the importance of supporting his claims with external evidence, he has not provided a copy of the pamphlet, or even a letter from his parents or other family members supporting this claim. Nor does he provide any other evidence that the Taliban is targeting members of either the Pakistan Tehreek-E-Insaf or the FHRO. Accordingly, while accepting that some violence has occurred in the Swat area, given all the above including its earlier findings about the applicant’s credibility, the Tribunal does not accept the applicant’s claims or that any threats or action have been made against him since the attack in March 2003. Nor does the Tribunal accept that the Taliban would see the applicant, given his profile and as he has now been in Australia for nearly 3 years, as such a threat that they would have bothered to prepare a leaflet specifically identifying and stating that he should be killed. Accordingly, the Tribunal does not accept this claim. It follows that the Tribunal finds that the applicant has embellished his claims for the purpose of enhancing his claim for a protection visa, and again finds that this goes to the matter of the applicant’s truthfulness and the credibility of his claims. In particular, given his extremely limited grassroots involvement in both political activities, and activities on behalf of the FHRO, the Tribunal does not accept in a country of 168 million people he would be seen to be a target or that there is a real chance that he would be subject to serious harm for a Convention reason on this basis.”
8. The Tribunal did make some findings about the applicant’s association with Tahreek-E-Insaf and the FHRO. It accepted that he was a member of both these organisations but considered his involvement to be at a very low level and unlikely to have involved him in being the object of the type of violence which he feared. Notwithstanding this the Tribunal went on to consider the possibility of the applicant relocating should he return to Pakistan. At [CB 287] at paragraph 50 the Tribunal says:
   • “[The Tribunal] asked him why would it not be reasonable for him to live somewhere else in Pakistan in safety without there being a real chance of his being harmed for a Convention related reason, the applicant simply replied...”

The Tribunal considered this question of relocation in more detail at [CB 288] at paragraph 52 where it said:

“The applicant has also shown a willingness and capacity to leave his home village in the past, either to go to sea for lengthy periods on two previous occasions, or to come to and remain in Australia. The Tribunal is satisfied that, notwithstanding his limited education and his previous employment, given the claims made by the applicant there is no Convention related reason why he would not be able to find a job if he sought it in another part of Pakistan. And while, as noted above, the applicant claims that he cannot support his family as he had no property to leave to his children and wife if he lived apart from his family, the Tribunal does not accept that any difficulties the applicant may have in this regard would be Convention related. Further, and while the applicant claims that his employment on ships is finished, so he could no longer work (at sea) or fund his family to live elsewhere, the applicant does not claim that there is a Convention related reason why he could not again seek employment in the shipping industry. In short, the Tribunal has not been able to satisfy itself that the essential and significant reason for any difficulties the applicant may have in finding a job, if he returns to Pakistan, would be Convention related, and the Tribunal does not accept this claim. It follows that if, for any reason, the applicant does not wish to return to his home village, then the Tribunal is satisfied it would be reasonable for him to live and work safely elsewhere in Pakistan, without there being a real chance of his being subject to serious harm amounting to persecution for a Convention related reason.”

At [CB 289] at paragraph 55 the Tribunal also said:

“In short, while accepting that the applicant has been involved in very limited grassroots activities in his village and on behalf of his political party and as a supporter of the FHRO, now nearly 3 years ago, the Tribunal is satisfied that if he did not wish to return to his home village of “K” for these or any other reasons, then it would be reasonable for him to move and live in safety elsewhere in Pakistan without there being a real chance that he would be persecuted.”

9. On 22 December 2008 the applicant filed an amended application with this Court. The grounds of the amended application which are relied upon are:
   • “1. The Tribunal failed to comply with s.425(1) Migration Act.
     • Particulars
     • (a) The Tribunal failed to disclose to the applicant that his claim that,
       • (i) A group of Taliban had recently come to his family home and enquired about him, and
       • (ii) That pamphlets calling for his death were distributed,
     • may not be believed.
   • 2. The Tribunal erred in its interpretation and application of the test for internal relocation.

Particulars

(a) Error in equating reasonableness of relocation to lack of a Convention based fear of persecution.”

10. The claim made by the applicant was not one which could have been made to the previous Tribunal. It was a claim of recent threats which the applicant says “if accepted” could well have been decisive in his favour. This is particularly so because the Tribunal recognised the applicant as a low level activist and also accepted that in certain circumstances even such persons could incur the wrath of potential persecutors [CB 285]. The applicant says that the claim of threats from the local Taliban constituted an issue arising in relation to the decision under review about which he must be given a proper opportunity to give evidence and present arguments: SZBEL v Minister for Immigration & Anor [2006] HCA 63; (2006) 228 CLR 152. SZBEL was also a case about a seaman who had jumped ship. In that case the seaman claimed to be a person who had an interest in and commitment to Christianity. The applicant had provided to the delegate a statutory declaration describing why he had jumped ship. At [3] Gleeson CJ, Kirby, Hayne, Callinan and Hayden JJ note:
    • “The Tribunal member then asked the appellant questions that elicited from him the same description of events as he had given in his statutory declaration. At no stage did the Tribunal challenge what the appellant said, express any reaction to what he said, or invite him to amplify any of the three particular aspects of the account he had given in his statutory declaration, and repeated in his evidence, which the Tribunal later found to be “implausible”. Rather, the first that the appellant knew of the suggestion that his account of events was implausible in these three respects was when the Tribunal published its decision.”

The Court considered at some length and in some detail what constituted “an issue” for the purposes of s.425. It acknowledged that in many cases before a Tribunal the applicant would be aware that all claims made by him were in issue because, for example, the delegate did not accept the credibility of his claims or/and expressed the view that they were “implausible”. But in some cases, as in that one, there would be constituents of a claim that did not reach the status of issues when considered by the delegate. The issues in SZBEL were three such.

“[43] The delegate had not based his decision on either of these aspects of the matter. Nothing in the delegate's reasons for decision indicated that these aspects of his account were in issue. And the Tribunal did not identify these aspects of his account as important issues. The Tribunal did not challenge what the appellant said. It did not say anything to him that would have revealed to him that these were live issues. Based on what the delegate had decided, the appellant would, and should, have understood the central and determinative question on the review to be the nature and extent of his Christian commitment. Nothing the Tribunal said or did added to the issues that arose on the review.
[44] The Tribunal did not accord the appellant procedural fairness. The Tribunal did not give the appellant a sufficient opportunity to give evidence, or make submissions, about what turned out to be two of the three determinative issues arising in relation to the decision under review...
[47] First, there may well be cases, perhaps many cases, where either the delegate's decision, or the Tribunal's statements or questions during a hearing, sufficiently indicate to an applicant that everything he or she says in support of the application is in issue. That indication may be given in many ways. It is not necessary (and often would be inappropriate) for the Tribunal to put to an applicant, in so many words, that he or she is lying, that he or she may not be accepted as a witness of truth, or that he or she may be thought to be embellishing the account that is given of certain events. The proceedings are not adversarial and the Tribunal is not, and is not to adopt the position of, a contradictor. But where, as here, there are specific aspects of an applicant's account, that the Tribunal considers may be important to the decision and may be open to doubt, the Tribunal must at least ask the applicant to expand upon those aspects of the account and ask the applicant to explain why the account should be accepted.”

But the views expressed in [47] above have to be construed with the benefit of what is said in [48]:

“[48] Secondly, as Lord Diplock said in F Hoffmann-La Roche & Co AG v Secretary of State for Trade and Industry, the rules of natural justice do not require the decision maker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision. If this were a rule of natural justice only the most talkative of judges would satisfy it and trial by jury would have to be abolished. Procedural fairness does not require the Tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given. On the contrary, to adopt such a course would be likely to run a serious risk of conveying an impression of prejudgment.”

11. SZBEL has been considered in a number of cases. In Minister for Immigration v Applicant A125 of 2003 & Anor [2007] FCAFC 162; (2007) 163 FCR 285 at [88] the full bench of the Federal Court, Emmett, Weinberg and Lander JJ said:
    • “The short answer to the applicant's submission based upon SZBEL [2006] HCA 63; 228 CLR 152 is that s.425 does not require the RRT to identify the significance of the questions that it puts to a claimant or the ultimate matter or issue to which those questions go. That is not what is required by SZBEL [2006] HCA 63; 228 CLR 152, and is an attempt to import the requirements of s.424A(1) into s.425.”

But it did indicate at [89] that it was important that the Tribunal brought to the applicant’s attention concerns which it had about critical issues and had done so by “repeatedly asking him to explain where he had lived just prior to coming to Australia”. That “clearly put him on notice that the timing of his having left the school was a matter of concern and therefore adequately informed him of the way which his answers might be used”. In the instant case nothing was said about the claims that the Taliban had recently visited the applicant’s home and indicated that he was likely to be seriously harmed should he return. I am satisfied that the claim constituted a dispositive issue because it went directly to the claim to have a well founded fear of persecution for a Convention reason. Flick J when dealing with a case that had been before a previously constituted Tribunal in SZDFZ v Minister for Immigration & Anor [2008] FCA 390 at [19] said:

“First, it is not considered that “the issues arising in relation to the decision under review” are to be defined in all cases by the decision of the delegate. Their Honours in SZBEL did observe “But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are “the issues arising in relation to the decision under review”... The issues which a delegate considers dispositive of the application may well be the issues which an applicant has to confront and answer when an appeal is lodged with the tribunal, eg SZJKU v Minister for Immigration & Citizenship [2008] FCA 308 at [37]–[45] per Emmett J. But the object of s.425 is to ensure that an applicant is given an opportunity “to give evidence and present arguments”, being evidence and argument “relating to the issues arising in relation to the decision under review”. And that is an obligation imposed upon the tribunal hearing the application before it, whether it be the tribunal initially hearing the application or any subsequent tribunal.
[20] To confine that opportunity to those issues identified by the delegate and the tribunal that ultimately may consider the appeal is to ignore the phrase “relating to the issues arising in relation to the decision under review”. Issues may arise out of the initial decision of a delegate; they may also arise out of a decision of an intervening tribunal that has been set aside by the Federal Magistrates Court with the consequence that a reconstituted tribunal is thereafter called upon to resolve afresh the claims made. A decision of any such intervening tribunal may resolve some factual issues adversely to an applicant but nevertheless proceed to uphold his claim. Just as those adverse factual findings of the intervening tribunal would need to be addressed before any subsequent tribunal, as “issues arising in relation to the decision under review”, so too would favourable findings made by the intervening tribunal be issues arising in a like manner.”

12. The vice that Flick J identified in SZDFZ was similar to the vice identified by the High Court in SZBEL, namely that the applicant had not had an opportunity to be questioned upon a dispositive issue where the issue was being raised not by the applicant himself but by the Tribunal. At [35] Flick J said:
    • “Each of these findings cannot be considered in isolation. Each of them presumably was part of the Tribunal’s reasoning process which led it to reject the claim made by the now Appellant. To impose upon the Tribunal an obligation to alert the Appellant to those matters which it considered may be relevant to an assessment of his claims is not to impermissibly expose the reasoning process of the Tribunal to scrutiny. Rather it is to impose upon the Tribunal an obligation to extend an opportunity to a party “to give evidence and present arguments”. Stripped of that opportunity, any process of reasoning thereafter undertaken by the Tribunal was a matter for its own internal deliberations – but it was a process of reasoning devoid of input by the now Appellant.”

But his Honour is again referring to what one might describe as the “hidden” issues.

13. It is in an analysis of what constitutes the issue that the distinction between the instant case and SZBEL and those that have followed it can be drawn. In the instant case the “issue” was one fairly and squarely put by the applicant to the Tribunal. It was not hidden from the applicant and only found by the Tribunal as were the issues in the cases which have been reviewed. The way in which the Tribunal in the instant case went about making the decision is more like the Tribunal in Abebe v The Commonwealth [1999] HCA 14; (1999) 197 CLR 510. In that case, the applicant, an Ethiopian citizen claimed persecution on the basis of her political views. During interviews with the delegate, the applicant claimed that she had been imprisoned and raped in custody. These claims had not been made during her account given upon arrival at Sydney airport, nor had they been made in her prior (unsuccessful) application for refugee status in South Africa.
14. The facts in Abebe are similar to the instant case in that both applicants (for different reasons) were on notice that all their claims were in issue. In Abebe, this was because the decision of the delegate pointed to “grave doubts” about the applicant’s credibility, in part, based on the fact that the alleged detention and rape had not been mentioned on the relevant prior occasions. As Gummow and Hayne JJ noted at [188], “After that, there could be no doubt that her story of detention and rape while in detention might not be accepted”. Similarly, in the instant case, the applicant had previously been found by the delegate not to have a genuine fear of persecution [CB 63] and by the former Tribunal to not be credible [CB 163]. In this way, the decisions of the delegate and the previous Tribunal indicated to the applicant that everything the applicant said was in issue: SZBEL at [47]. Moreover, the applicant’s claim that he had only recently been threatened by the Taliban was a completely new claim. Unlike the factual circumstances in SZBEL, no intervening decision maker had found this claim to be sound. As such, there was nothing which could have “hidden” this issue from the applicant.
15. Although Abebe was heard a considerable time before SZBEL s.425 then governed the manner in which the Tribunal was to conduct its hearings. It has not been suggested by the High Court or interpreted by a full bench that SZBEL overrules any of the views expressed by the High Court in Abebe and I would not so interpret it. I do not consider that SZBEL contradicts Abebe and is more properly described as a complimentary decision. In my view a proper analysis of what occurred in this case is that the applicant made a genuinely new claim, that is, one not infected by not having been made before. In conformity with the authorities: Abebe at [187] (Gummow and Hayne JJ); Applicant S214/2003 v Refugee Review Tribunal [2006] FCAFC 166 at [26] (Allsop, Jacobson and Graham JJ), it was his responsibility to provide the Tribunal with sufficient information concerning that claim to allow the Tribunal to reach the necessary state of satisfaction. He did not do so. The fact that the Tribunal went further and suggested that the information was an embellishment for the purpose of enhancing his claim for a protection visa does not affect the applicant’s responsibility. To a great extent these comments, and they are made frequently by Tribunals, are otiose because it is not necessary to establish that an applicant is a liar or an embellisher of fact to reinforce a failure to reach a state of satisfaction. But by the same token it is not a jurisdictional error to come to an otiose conclusion when the essential conclusion has already been reached, as it has here.
16. I am unable to sustain the arguments put so eloquently by Mr Karp and cannot find that the Tribunal fell into jurisdictional error by not asking the applicant to expand upon his own claim. The grounds for rejecting the claim are said to be:
    • “However, while the applicant has since, lodging his protection visa application, clearly shown that he appreciates the importance of supporting his claims with external evidence, he has not provided a copy of the pamphlet or even a letter from his parents or other family members supporting his claims. Nor does he provide any other evidence that the Taliban is targeting members of either the Tahreek-E-Insaf or the FHRO.” [CB 287]

This shows that the Tribunal has not relied on any other hidden issue to come to the conclusion about its state of satisfaction. It is based solely on lack of evidence. In SZBEL and the other cases, the Tribunal’s lack of satisfaction arose out of evidence which had not previously been seen to be controversial or constituting “an issue”.

17. Having found that the Tribunal did not fall into jurisdictional error when it came to the conclusion that the applicant did not have a well founded fear of persecution for a Convention reason there is no necessity for me to consider the allegedly independent finding of relocation. I will however note that I am not at all satisfied that the Tribunal applied the right test in considering relocation. At [CB 288] at paragraph 52 relocation is fully considered. There are two short references to it at paragraph 50 and 54. I do not consider that these relieve the Tribunal of the errors which I believe have been made at paragraph 52:
    • “The Tribunal is satisfied that, notwithstanding his limited education and his previous employment, given the claims made by the applicant there is no Convention related reason why he would not be able to find a job if he sought it in another part of Pakistan. And while, as noted above, the applicant claims that he cannot support his family as he had no property to leave to his children and wife if he lived apart from his family, the Tribunal does not accept that any difficulties the applicant may have in this regard would be Convention related. Further, and while the applicant claims that his employment on ships is finished, so he could no longer work (at sea) or fund his family to live elsewhere, the applicant does not claim that there is a Convention related reason why he could not again seek employment in the shipping industry. In short, the Tribunal has not been able to satisfy itself that the essential and significant reason for any difficulties the applicant may have in finding a job, if he returns to Pakistan, would be Convention related, and the Tribunal does not accept this claim. It follows that if, for any reason, the applicant does not wish to return to his home village, then the Tribunal is satisfied it would be reasonable for him to live and work safely elsewhere in Pakistan, without there being a real chance of his being subject to serious harm amounting to persecution for a Convention related reason.”
18. The proper test for considering relocation was expressed by the full bench of the High Court, Black CJ, Beaumont and Whitlam JJ, in Randhawa v Minister for Immigration [1994] FCA 1253; (1994) 52 FCR 437 where the Chief Justice said at p.442:
    • “Given the humanitarian aims of the Convention this question was not to be approached in a narrow way and in her further analysis the delegate correctly went on to ask not merely whether the applicant could relocate to another area of India but whether he could reasonably be expected to do so. This further question is an important one because notwithstanding that real protection from persecution may be available elsewhere within a country of nationality, a persons fear of persecution in relation to that country will remain well founded with respect to the country as a whole if, as a practical matter, the part of the country in which protection is available is not reasonably accessible to that person. In the context of refugee law the practical realities facing a person who claims to be a refugee must be carefully considered.”

In SZIED v Minister for Immigration & Anor [2007] FCA 1347 Moore J considered the observations of Black CJ in Randhawa. At [42] his Honour noted the formidable difficulties faced by an applicant in demonstrating that there is no other area to which they can reasonably be expected to relocate:

“Firstly, the issue of relocation is almost always raised by the Tribunal, not the applicant, and raised at the hearing. The significance of this is particularly acute in cases where the applicant is not represented before the Tribunal, although that is not the present case. Secondly, the issue is necessarily speculative. This second issue raises the importance of the Tribunal properly evaluating what the asylum seeker says about relocating. This issue requires consideration of not only whether a safe haven exists in another part of the country. Proper consideration must also be given to the issue of relocation as a practical matter, by considering whether it would be reasonable to expect the person to relocate in view of all the “practical realities” facing that person.”

Nowhere in the authorities is a reference made to Convention reasons being the only ones which would prevent an applicant from accessing protection by relocation. If I had been required to consider whether the independent finding of the ability to relocate was a finding infected by jurisdictional error I would have been bound to say that in my view it was.

19. For the reasons given above I dismiss this application. I order that the applicant pay the respondent’s costs which I assess in the sum of $5,000.00.
20. I cannot, however, leave this matter without reference to an article by Amanda Hodge that appeared in The Australian on 9 February 2009 headed “Taliban’s Darkness Descends on Swat Valley” which stated:
    • “Just 160km from Pakistan’s capital, Islamabad, the picturesque valley - once famed for its cosmopolitan ski resort and liberal, artistic community - has become a symbol of the Pakistani Government’s inability to crack down on the jihadist movement that is threatening to destabilise the country. Almost daily residents in Mingora, the only major town in Swat, find four to five headless bodies on the streets, victims of the Taliban... Fazlullah [a Talibani leader] stepped up his campaign in Swat after November’s Mumbai attacks... In December, he announced all education for girls would cease by January 15 - when private schools were due to reopen - prompting the Pakistani newspaper The News to editorialise: “the beautiful valley now enters a time of darkness.” The number of schools blown up or torched stand at 181, and militants have blown up power grids, bridges, gas lines and hotels... The UN Office for the Coordination of Humanitarian Affairs projected last week that the situation in Swat and FATA tribal areas could significantly worsen over the next 12 months, displacing a further 625,000 people.”

Whilst the applicant may not be able to access the Tribunal for further consideration of his claims, he might address these to the Minister pursuant to s.417 of the Act.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of FM Raphael FM

Associate:

Date: 16 February 2009