Grounds 1 and 3
25 The Tribunal accepted that the appellant would face a real chance of persecution for a Convention reason at the hands of the Taliban if he were to return to his home in the Swat region. The Tribunal then considered the appellant's claim that it is not reasonable for him to relocate to another part of Pakistan because he would remain at risk of persecution by the Taliban. In support of this claim, the appellant pointed to the killing of several of his friends in Karachi because of their involvement in the ANP and the same lashkar. His argument was that if those friends had been targeted and killed in circumstances where they had a similar level of involvement as his in the ANP and the lashkar, there was a risk that he would also be targeted and killed even if he were to relocate to Karachi.
26 The appellant submits that the risk posed as a result of his involvement with the lashkar and the killing of his friends in Karachi were both "integers" of his claim which the Tribunal was required to, but failed to, consider. He argues that the Tribunal thereby failed to exercise its jurisdiction. The Minister argues that neither of these matters were "integers" of his claim, but were merely pieces of evidence which were not required to be considered by the Tribunal. The Minister argues that, in any event, the Tribunal's reasons demonstrate that it did consider those matters.
27 Before considering the competing arguments, it is necessary to say something about the Tribunal's function and the relevance of possible relocation within Pakistan to the decision. The Tribunal's function under s 414(1) of the Act is to review certain decisions of the Minister if a valid application for review is made. The Tribunal must consider whether it is satisfied of the matters required under s 65(1) of the Act. In the context of an application for a protection visa, it is required to consider whether it is satisfied that the criteria set out in s 36 of the Act are met.
28 Section 36(2)(a) of the Act provides, relevantly, that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Article 1A(2) of the Refugees Convention defines a refugee as any person who:
owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country…
29 In Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437, Black CJ (with whom Whitlam J agreed) held at 440-441 that there is no warrant for construing the definition of "refugee" so that it would give refugee status to those who, although having a well-founded fear of persecution in their home region, could nevertheless avail themselves of the real protection of their country of nationality elsewhere within that country. Black CJ also held that it is necessary to ask whether the visa applicant could reasonably be expected to relocate to another area of his or her country of nationality. His Honour said at 443:
If it is not reasonable in the circumstances to expect a person who has a well-founded fear of persecution in relation to the part of a country from which he or she has fled to relocate to another part of the country of nationality it may be said that, in the relevant sense, the person's fear of persecution in relation to that country as a whole is well-founded.
30 In SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18, Gummow, Hayne and Crennan JJ adopted Lord Bingham of Cornhill's exposition of the role of relocation given in Januzi v Secretary of State for Home Department [2006] 2 AC 426 at 440:
The [Convention] does not expressly address the situation at issue in these appeals where, within the country of his nationality, a person has a well-founded fear of persecution at place A, where he lived, but not at place B, where (it is said) he could reasonably be expected to relocate. But the situation may fairly be said to be covered by the causative condition to which reference has been made: for if a person is outside the country of his nationality because he has chosen to leave that country and seek asylum in a foreign country, rather than move to a place of relocation within his own country where he could have no well-founded fear of persecution, where the protection of his country would be available to him and where he could reasonably be expected to relocate, it can properly be said that he is not outside the country of his nationality owing to a well-founded fear of being persecuted for a Convention reason.
31 Lord Bingham continued at 440:
[A] person will be excluded from refugee status if under all the circumstances it would be reasonable to expect him to seek refuge in another part of the same country.
32 It was in this context that the Tribunal was required to consider whether the appellant would have a well-founded fear of persecution for a Convention reason if he were to relocate to another part of Pakistan, and whether it is reasonable for him to relocate. The Tribunal considered these questions by reference to Karachi. That was because the focus of the appellant's argument was that he was at risk of being targeted by the Taliban if he relocated to Karachi. It would have also been open to the Tribunal to consider possible relocation to any other part of Pakistan, but the Tribunal did not find it necessary to do so.
33 The appellant submits that the Tribunal made no specific findings concerning his clearly articulated and specific claim that he would be at risk of harm in Karachi because of his involvement in the lashkar and his claim that his friends who were in a similar position to him had been targeted and killed. The Tribunal expressly referred to these matters in its description of the appellant's evidence and claims, but the appellant argues that the Tribunal omitted to make findings as to these matters, indicating that the Tribunal fell into error by failing to complete its statutory function of reviewing the decision.
34 In Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244, Allsop J (with whom Spender J agreed) said at 259:
[42] The tribunal failed to address and deal with how the claim was put to it, at least in part. The requirement to review the decision under s 414 of the Act requires the tribunal to consider the claims of the applicant. To make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked on. The claim or claims and its or their component integers are considerations made mandatorily relevant by the Act for consideration in the sense discussed in Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24; 66 ALR 299 and Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; 180 ALR 1; 62 ALD 225. See also Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287; 58 ALD 30 at [18], [19], [21] and [50]. It is to be distinguished from errant fact finding.
35 In Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630, French, Sackville and Hely JJ said at 641:
[46] It is plainly not necessary for the tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; 62 ALD 225; 180 ALR 1 at [87]-[97]) and a failure by the tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised "with an eye keenly attuned to error". Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.
[47] The inference that the tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where, however, there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.
(Underlining added.)
36 It may be seen that there is a distinction between an "integer" of a claim and "evidence". If resolution of an issue in a particular way would be dispositive of the Tribunal's review of the decision, it may be regarded as an integer which must be dealt with by the Tribunal.
37 In the present case, it was a central part of the appellant's claim that he was unable to relocate elsewhere in Pakistan because he was at risk of being targeted by the Taliban and killed because of his involvement with the lashkar in Koza Bandai. That was an issue which, if resolved in favour of the appellant, would have been dispositive of the Tribunal's review of the delegate's decision. The issue was an integer of the appellant's claim and the Tribunal was required to consider and deal with it. I will examine whether the Tribunal did deal with this integer.
38 After accepting that the appellant would face a real chance of persecution because of his involvement with the lashkar if he returned to Swat, the Tribunal expressly considered whether he would be at risk of being targeted and killed by the Taliban if he relocated to Karachi. The Tribunal's findings on this question were informed and influenced by its findings on the role that the appellant had in the lashkar. The Tribunal concluded that he had exaggerated his role in the lashkar and found that he had not been targeted by the Taliban in Swat. The Tribunal found that the character of the appellant's activity and his profile in Swat was not of a kind that would see the Taliban looking out for him or tracking him down elsewhere.
39 The Tribunal expressly referred [at para 139] to the chance that the appellant would face persecution outside Khyber Pakhtunkhwa on account of his support for the ANP, his anti-Taliban political opinion, and his having originated from Swat. The appellant submits that the absence of specific reference to his involvement with the lashkar indicates that the Tribunal failed to deal with that integer of his claim.
40 However, it is necessary to read the Tribunal's reasons as a whole. The Tribunal's reasons for its finding that the appellant would not face a real chance of persecution if he relocated to Karachi must be read in the context that it had already made a finding that there was a real chance of persecution if he were to return to Swat by reason of his involvement in the lashkar. It would be artificial to read the Tribunal's reasons concerning the absence of a real risk of persecution in Karachi divorced from its earlier findings. In any event, the Tribunal said [at para 133] that "the Tribunal has rejected the claim that the Taliban threatened and came looking for him in Swat". That statement referred to the Tribunal's earlier rejection of the appellant's claim that he had been an informer for the army through his involvement with the lashkar which had led to the Taliban targeting him in Swat. It follows that when considering and dealing with the appellant's claim that he would be targeted and killed in Karachi, the Tribunal did so by reference to his involvement with the lashkar. The failure of the Tribunal to expressly refer to the appellant's involvement with the lashkar in its summary of its findings [at para 139] does not mean that the Tribunal did not in fact deal with that integer of the claim.
41 The appellant's evidence that several of his friends who had a similar role in the lashkar had been targeted and killed in Karachi was not an integer of his claim. That was a piece of evidence which the appellant relied on to establish that he was at risk of being targeted and killed in Karachi. That evidence, if accepted by the Tribunal, was capable of influencing the Tribunal's decision, but would not have been dispositive. Any failure on the part of the Tribunal to consider and deal with this evidence would not, of itself, amount to a failure of the Tribunal to conduct a review of the decision. I will consider whether, in any event, the Tribunal did deal with this evidence.
42 The appellant submits that the Tribunal did not deal with his allegation that his friends who had a similar level of involvement to him in the lashkar were targeted and killed in Karachi. The Tribunal said at [at para 132] that "The applicant has named people he knows in Karachi who he claims have been killed." The Tribunal did not go on to make any findings as to whether it accepted or rejected that aspect of the appellant's evidence.
43 The Tribunal's reasoning for its finding that the appellant was not at risk of being targeted in Karachi would not, however, have been affected by any finding as to whether his friends had been targeted and killed in Karachi. The appellant alleged that he and his friends all had a similar level of involvement in the lashkar. The Tribunal appears to have proceeded by assuming in favour of the appellant that his friends had been targeted and killed. However, the Tribunal found that the appellant's own level of involvement was at a lower level than he had claimed and considered that, unlike his friends, the appellant was not likely to be targeted by the Taliban. I accept my understanding of the Tribunal's reasoning involves some inference as to its process of reasoning. However, it seems tolerably clear that this is the way the Tribunal proceeded. Even if I am wrong in my understanding of the Tribunal's reasons, as I have indicated, any failure by the Tribunal to deal with the appellant's evidence concerning his friends did not amount to a failure of the Tribunal to review the delegate's decision.
44 In these circumstances, the appellant has not established the first and third grounds of his notice of appeal.