Consideration
36 I am of opinion that the tribunal's reasoning in relation to the banishment of the appellant by the tribal elders and the requirement that his family put on a defence to his activities, demonstrates that it made a jurisdictional error in dealing with the review.
37 It is important to recognize that the tribunal is the body created by the Parliament to conduct the review on the merits of decisions by the Minister or his or her delegate. The role of the court in proceedings such as this is to review whether in reaching its decision, the tribunal adhered to or departed from the procedure for the conduct of the review laid down in the Act or, to the extent that s 422B and Div 4 Pt 7 of the Act do not exclude them, the principles of common law. Nonetheless, as Brennan J observed in Kioa v West (1985) 159 CLR 550 at 662: '[t]he distinction between method and merits is sometimes elusive.' But, where the court is not authorized by statute to substitute its view of the merits, it must confine itself to a consideration of whether the repository of the statutory power under challenge, here the tribunal, has arrived at its decision on the merits by a procedure authorized by, and in conformity with, the enactment which conferred the power: Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 222 ALR 411 at 415-416 [14]-[16] per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ. If the repository so acted, even if the court disagrees with the merits of the decision so reached, the court must hold that the repository has exercised lawfully the jurisdiction which it had.
38 In exercising its function of conducting a review of a decision under s 414(1) of the Act, the tribunal cannot simply act perfunctorily. Nor can it shut its ears or eyes so as to ignore, consciously or inadvertently, the claims made by the applicant for review (cf: Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at 394 [24]-[25] per Gummow and Callinan JJ, 406-407 [86]-[87] per Kirby J, 408 [95] per Hayne J).
39 In arriving at what it considers to be the correct or preferable decision (Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1 at 18) at the conclusion of its review under ss 414(1) and 415 of the Act, the tribunal must give 'proper, genuine and realistic consideration to the merits of the case' (Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291 at 292 per Gummow J, Zhang v Canterbury City Council (2001) 51 NSWLR 589 at 601 [62] where Spigelman CJ collected the authorities; Minister for Immigration v Yusuf (2001) 206 CLR 323 at 367 [138] per Kirby J.
40 So, in Re Minister for Immigration and Multicultural and Indigenous Affairs: Ex parte Palme (2003) 216 CLR 212 at 223-224 [39] Gleeson CJ, Gummow and Heydon JJ referred to the inference which is open to a court exercising the function of judicially reviewing a decision of the executive government that if the decision-maker does not give any reason for his or her decision the court may be able to infer that he or she had no good reason.
41 As Brennan CJ, Toohey, McHugh and Gummow JJ said in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 the reasons of an administrative decision-maker are meant to inform and are not to be scrutinized upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.
42 The tribunal said that if the appellant had tried to establish his own NGO group he would not have failed to refer to it at all in his submissions to the department. Had there been no independent material to the contrary before the tribunal such a finding may have been open.
43 The tribunal said that 'it consider[ed] it somewhat implausible that the Jirga members might even have been aware of' the existence the appellant's group. The newspaper article of 10 November 2002 was evidence that the tribunal had before it which described both him and, the group, Llawyl, by name. The tribunal made no finding that the newspaper article was not genuine or otherwise. The tribunal was required by s 430 of the Act to express reasons as founding its decision, why it was 'somewhat implausible' that the Jirga was aware of the appellant's group. Yet according to the express words of the newspaper article the Jirga, had in fact, made the very connection. The tribunal merely asserted, without referring to any basis in the evidence before it, that it, the Tribunal, found it 'implausible' or unbelievable that the Jirga made the connection it was reported to have made. This ignores the fact reported, namely that the Jirga did just that. There was no reasoning process by the tribunal for doubting this, let alone one based on any evidence.
44 Whether or not the tribunal would have made the connection were it in the place of the Jirga is entirely irrelevant to its task. The tribunal was required to consider the appellant's claim which was supported by the newspaper reports of the Jirga having made the connection, then banishing the appellant and calling on his family to explain itself. While the tribunal was not bound to accept such a claim, it was obliged to give reasons, not mere assertions, for rejecting it.
45 In The Queen v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100 at 120 ,Dixon CJ, Williams, Webb and Fullagar JJ said:
'The inadequacy of the material is not in itself a ground for prohibition. But it is a circumstance which may support the inference that the tribunal is applying the wrong test or is not in reality satisfied of the requisite matters. If there are other indications that this is so or that the purpose of the function committed to the tribunal is misconceived it is but a short step to the conclusion that in truth the power has not arisen because the conditions for its exercise do not exist in law and in fact.'
(see too Bushell v Repatriation Commission (1992) 175 CLR 408 at 421-422 per Mason CJ, Deane and McHugh JJ)
46 In a case in which the tribunal found, without making any investigation that newspaper articles were not genuine and that parts of the applicant for review's story were 'implausible', a Full Court of this court held that the tribunal had made a jurisdictional error by failing to conduct its review in accordance with the fair procedure required by the Act (Applicant M164/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 16 at [44], [48], [53], [64]-[66], [89]-[92] per Lee J, [108]-[119] per Tamberlin J agreeing).
47 What is even more extraordinary about the deficiency in the reasoning process in the case before me is that the second newspaper article appeared, while the appellant was in Australia, on 1 June 2004 during the hearing reinforcing the fact that the Jirga was actively engaged in persecuting the appellant and his family. Again, the tribunal made no finding about the genuineness or otherwise of this article.
48 The 1 June 2004 article repeated the public condemnation, apparently in the city of Peshawar, of the appellant and his group for the political views they had expressed. Faced with two newspaper publications 18 months apart in two apparently different newspapers, one in Arabic and the other in English, the tribunal had evidence to support the appellant's claim from apparently genuine and independent sources that he had been publicly identified in the media by a religious group for his expression of political opinion and religious practices. The tribunal gave no explanation as to why it was implausible that that which appeared in the newspaper articles could have, let alone in fact did, come to the notice of the Jirga or why it was not accepted as evidence to support the claims. And, the tribunal did this in the context of then accepting that the appellant held more liberal views than some tribal leaders in the Khyber Agency and that he may have attracted their disapproval in 2002.
49 Having accepted also that the appellant may have a political opinion imputed to him by the Jirga members the tribunal then asserted, as an 'ipse dixit' that it considered that the chance was remote that the Jirga would subject him to harm amounting to persecution for that reason in the reasonably foreseeable future. No basis was given by the tribunal for that assertion. The Jirga had issued a statement that the appellant was to be banished from the area in which he had previously lived and worked, which had been published in a contemporary newspaper in November 2002. The Jirga was reported on 1 June 2004, during the hearing before the tribunal, as requiring the appellant and his group to explain their religious and political behaviour.
50 But that is not the end of the tribunal's illogicality. It then said 'there is no evidence that the Jirga have located or threatened his family in Peshawar or that they have any influence outside Khyber Agency at all'. (I have emphasized the assertion that there was 'no evidence' which is in the teeth of the contents of the newspaper articles.)
51 The first article of 10 November 2002 required the appellant's family to put up a defence for themselves of his conduct. The second article, of 1 June 2004, noted that the appellant's family had put up their defence, namely that the appellant 'had adopted the company of wrong people' and that the Jirga had expressed satisfaction over that explanation from the appellant's father. The second article reported that it had its source in Peshawar. It may be that the reporter was located there, but it seems clear enough that contact was made between the Jirga members and the appellant's family. Both articles are bylined from Peshawar. The tribunal gave no reasoning process as to why publication of the November 2002 article, which one might infer was in a daily newspaper in Peshawar bearing the masthead 'The Daily AJJ Peshawar', would not come to the attention of persons who knew the appellant's family who were living in Peshawar and its environs.
52 Commonsense says that that is a conclusion that must be obvious to anyone in the position of the tribunal. The tribunal gave no reasoning as to why the appellant's family would want to respond to the Jirga, if it were in fact remote from or had no impact, potential or real, on the lives of the appellant's family. To make the finding that there was 'no evidence that the Jirga had located or threatened his family' belies the fact that two public newspapers circulating in the home city of the family published over 18 months apart had named the family as, firstly, having a case to answer to the Jirga and, secondly, publishing its answer as given to the Jirga.
53 In my opinion, no reasonable person could have expressed a reasoning process in the way that the tribunal did in order to deal with this evidence. Nor did the tribunal use its investigative powers by means of s 427(1) of the Act in the way suggested by Lee J or Tamberlin J in M164/2002 v Minister [2006] FCAFC 16 at [63]-[66], [118] by asking the Secretary of the department to investigate the newspaper articles. Moreover, the fact that the Jirga had banished the appellant from the area in which he worked and that its decree had been publicly notified in his family's home city, indicated that there was in fact persecution for a Convention reason (political opinion) of the appellant at least in the area in which the Jirga's influence extended. Whether or not that went as far as Peshawar may be a matter that was legitimately within the area of fact-finding confined to the tribunal. But the tribunal did not consider the punishment of banishment at all in assessing whether the appellant's fear of persecution was well founded. It merely noted that he had complied with the banishment and did not return to the Peshawar area in the subsequent ten months he had remained in Pakistan following it.
54 The tribunal also dismissed as evidence of persecution for a Convention reason the fact that the appellant had been thrown into the canal for what ostensibly was a motivation, by reason of his religion, membership of a particular social group or political opinion, perceived by his attackers. The tribunal reasoned that because the appellant did not suffer any serious harm and was uninjured and 'therefore [found] that it did not amount to persecution'. The fortuity that when one is attacked by 14 or 15 people and thrown into a watercourse one might not be injured sufficiently to require medical attention belies the fact that the experience which the appellant suffered was plainly intimidatory and potentially very dangerous. A mob attack by persons in Peshawar, claiming that the appellant should not have employed a Christian or expressed certain opinions based on religion or politics, was capable of supporting his claim that the influence of the Jirga and those associated with it had extended to that city and that the appellant was a target. Instead, the tribunal dismissed its findings as to this as having no effect because the appellant fortuitously, presumably, could swim and therefore did not drown, and had not been sufficiently harmed in the attack before he was thrown into the water to stop him getting out and getting away.
55 The tribunal's task was to consider whether the appellant had a well -ounded fear that he might be persecuted. It ignored the fact that an attack such as this following on from his being banished for publicly exposed and publicized reasons, could have provided a well founded fear of persecution. In my opinion no rational person could have failed to give consideration that there was a 'real chance' that he would suffer persecution for a Convention reason within the meaning of s 91R of the Act: see Chan v Minister for Immigration (1989) 169 CLR 379 at 389, 398, 407, 429; Applicant NADB of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 216 ALR 1 at 38 [160]-[161] per Hayne and Heydon JJ. The function of an administrative decision-maker is to give genuine and real consideration to the material before it.
56 When the tribunal said that it '… consider[ed] it somewhat implausible that the Jirga members might have even been aware …' that the appellant's group existed, it was suggesting that the claim was somewhat 'without appearance of truth or acceptability' as Lee J explained in Applicant M164/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 16 at [44]. The tribunal gave no explanation for discounting what appeared to be newspaper articles before it in which there could have been no doubt that, if genuine, the Jirga did know of the appellant's group's existence and what is more it had sought to banish him and cause his family to account to the Jirga by reason of the appellant's and his group's activities.
57 The tribunal gave no reasons for asserting any form of implausibility of that material. It did not suggest that the newspaper reports were anything other than genuine, and if it wished to have investigated that question it could have used its powers under s 427(1)(d) of the Act to require the Secretary to 'arrange for the making of any investigation that the tribunal thinks necessary with respect to the review, and to give to the tribunal a report of that investigation …'. (see Applicant M164/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 16 at [62]-[66], [90]-[92] per Lee J; [108], [113]-[119] per Tamberlin J). Likewise, the assertion by the tribunal that there was no evidence that the Jirga had located or threatened the applicant's family in Peshawar or that they had any influence outside the Khyber Agency at all is flatly contradicted by the newspaper articles, especially that of 1 June 2004 and has no evidentiary support whatever.
58 The tribunal used these findings to conclude that the applicant was not a prominent political activist and was therefore capable of relocating within Pakistan on the ground that the chance would be remote, were he to return to Karachi, that he might be subjected to persecution for reasons of his political opinions by tribal or religious leaders from the remote Khyber Agency.
59 I am of opinion that by the way in which it dismissed the objective evidence provided in the two newspaper articles, the tribunal ignored relevant material (the newspaper articles) and relied on irrelevant material (namely its bare, unsupported assertions that the objective facts demonstrated in the newspaper articles were 'somewhat implausible' and gave 'no evidence' of the Jirga's activities). That was a jurisdictional error: see Craig v South Australia (1995) 184 CLR 163 at 179; Secretary of State for Education and Science v Thameside Metropolitan Borough Council [1977] AC 1014 at 1047D-E; Minister for Immigration and Multicultural Affairs v Rajamanikkam (2002) 210 CLR 222 at 233 [27], 241 [58], 250 [97] and SZGDB v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 431 at [33]-[38].
60 Here, procedural fairness required the tribunal to give proper genuine and real consideration to the appellant's claim that he had been persecuted by the tribal leaders and the Jirga who had been in Khyber Agency. The tribunal had noted country information on jirgas in Pakistan earlier in its decision immediately before the section headed 'Findings and Reasons'. It referred to a recent Pakistan press report which said that people in rural areas are forced to obey the orders of a jirga and that the Jirga is an institution in Pakistan's informal justice system which is condoned by corrupt officials in the police force.
61 Each of the two newspaper articles concerning the appellant showed, apparently credibly, that those tribal leaders and the Jirga were aware of the appellant, his group and his 'liberal' views and that that awareness had received publicity at least to readers of the newspapers and in Peshawar. While the tribunal said it considered 'it somewhat implausible that the Jjrga members might even have been aware of [the group's] existence', it accepted that the appellant may have had a political opinion imputed to him. Accordingly, the tribunal accepted part of the claim, but it gave no reason for it being 'somewhat implausible' notwithstanding the apparently credible independent and only other evidence in the newspaper articles. This deficiency in the reasoning process of the tribunal appears to be related to that which immediately followed, namely, the conclusion, despite the express terms of the articles that:
'…[t]here is no evidence that the jirga have located or threatened his family in Peshawar, or that they have any influence outside Khyber Agency at all.'
62 As counsel for the Minister submitted, the way in which the appellant's father came to be present at the Jirga was not in any material before the tribunal, which had only the fact that the father was there. But the fact of his presence and the, in effect, public disowning of the appellant's opinions to the Jirga, on behalf of his family, is not addressed by the tribunal. If the Jirga had not located or threatened them, then the appellant's family had no reason to recognize it or appear, through his father, before it. Moreover, the tribunal found that the appellant had been banished from Khyber Agency by the Jirga and that he had complied with its order almost immediately by moving away from where his family was to Karachi. The tribunal also had accepted the appellant's account of the attack on him in Peshawar resulting in his being thrown into a canal by Muslims from a local mosque but found that this did not amount to persecution because he was not seriously injured.
63 In Applicant NADB of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 216 ALR 1 at 38 [160]-[161] Hayne and Heydon JJ said:
'[160] When reviewing a refusal to grant a protection visa, the question for the tribunal must always be whether the particular applicant has a well-founded fear of persecution (as persecution is now to be understood [s 91R]) for a Convention reason. If the applicant fears persecution for a Convention reason, examining whether that fear is well founded requires the tribunal to decide whether there is a real chance that the applicant would suffer persecution for a Convention reason. As pointed out [(1989) 169 CLR 379 at 389; 87 ALR 412 at 418 per Mason CJ, CLR 398; ALR 424-5 per Dawson J, CLR 407; ALR 431-2 per Toohey J, CLR 429; ALR 448-9 per McHugh J. See also Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 571-5; 144 ALR 567 at 576-9; [1997] HCA 22 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ.] in Chan v Minister for Immigration and Ethnic Affairs, reference to a real chance of persecution must not be substituted for, or be permitted to obscure the content of, the test prescribed in the Convention - whether an applicant holds a well-founded fear of persecution. It is sometimes convenient nonetheless to use the expression "real chance" as a shorthand reference to the nature of the factual inquiry being made.
[161] The available material bearing on whether an applicant's subjective fear of persecution for a Convention reason is a fear that is well founded will vary from case to case. Usually, considering whether an applicant's fear is well founded will be assisted by considering how others, in like case to the applicant, are being, or have in the past been, treated. [Guo (1997) 191 CLR 559 at 575; 144 ALR 567 at 579; [1997] HCA 22]The difficulties of making such comparisons are obvious.'
64 Of course, by s 91R(1) the tribunal was required to assess whether the persecution feared involved serious harm to the appellant. But s 91R(2) gave instances such as a threat to the person's life, significant physical harassment or ill-treatment of him.
65 The tribunal dismissed the canal incident because that incident did not result in serious harm but it never considered whether such an attack, by many persons of one faith in company who were hostile to the appellant's religious behaviour and political opinion and or membership of a social group, gave rise to a 'well founded fear'. Instead the tribunal asserted, without identifying a basis that there was nothing to suggest that there would be a risk of this behaviour being repeated in the future because, so it said, the appellant would not employ a Christian and could modify his use of language to avoid the word 'jihad' in campaigning against drug trafficking. This assertion was misconceived. As McHugh and Kirby JJ said in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 at 490-491 [43]-[44]; and see too per Gummow and Hayne JJ at 501-502 [82]-[83]:
'[43] The notion that it is reasonable for a person to take action that will avoid persecutory harm invariably leads a tribunal of fact into a failure to consider properly whether there is a real chance of persecution if the person is returned to the country of nationality. This is particularly so where the actions of the persecutors have already caused the person affected to modify his or her conduct by hiding his or her religious beliefs, political opinions, racial origins, country of nationality or membership of a particular social group. In cases where the applicant has modified his or her conduct, there is a natural tendency for the tribunal of fact to reason that, because the applicant has not been persecuted in the past, he or she will not be persecuted in the future. The fallacy underlying this approach is the assumption that the conduct of the applicant is uninfluenced by the conduct of the persecutor and that the relevant persecutory conduct is the harm that will be inflicted. In many -- perhaps the majority of -- cases, however, the applicant has acted in the way that he or she did only because of the threat of harm. In such cases, the well-founded fear of persecution held by the applicant is the fear that, unless that person acts to avoid the harmful conduct, he or she will suffer harm. It is the threat of serious harm with its menacing implications that constitutes the persecutory conduct. To determine the issue of real chance without determining whether the modified conduct was influenced by the threat of harm is to fail to consider that issue properly.
[44] Subject to the law, each person is free to associate with any other person and to act as he or she pleases, however much other individuals or groups may disapprove of that person's associations or particular mode of life. This is the underlying assumption of the rule of law.'
66 I am of opinion that the tribunal misconceived the question which it was required to address on the review under s 414(1) of the Act. It dismissed the appellant's claims of a well-founded fear by making mere assertions that, although he complied with the banishment imposed by the Jirga, the chance was remote that they might subject him or his family who remain in Peshawar to harm in the foreseeable future and that a physical assault on him by a large group in company was not persecution because he was not seriously hurt.
67 These assertions were unreasoned and unsupported because they ignored objective facts found and did not deal with the apparently credible newspaper articles which supported the claims. If the tribunal meant to say that because the appellant will accept his banishment he can have no fear, that involved the very mistake of which McHugh and Kirby JJ wrote (216 CLR at 490 [43].
68 I have not overlooked that the issue of whether the appellant could relocate within Pakistan, which was also before the tribunal. However, that issue could arise only after a determination that he had a reason to relocate. The tribunal committed a jurisdictional error in dealing with the claims of the appellant.
69 And, in reaching its conclusion that the appellant could relocate to Karachi where he could live safely, the tribunal, first, considered in a jurisdictionally erroneous manner only his claim relating to the tribal and religious leaders of Khyber Agency and, secondly, said it had taken into account all of the evidence. In other words, the tribunal did not assess the claims based on the appellant being free to act in Karachi, as he would have acted without modifying his behaviour to eschew the realization of his fears. Hence, in the penultimate paragraph of its reasons when dealing with the canal attack, the tribunal's approach as described above, was to deal with the claim by reference to its (unfounded) anticipation that the appellant would modify his behaviour. That approach evinced the very error exposed in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 at 490-491 [43]-[44], 501-502 [82]-[83].
70 I am satisfied, for the reasons above, that the tribunal misconceived its task in assessing whether the appellant had a well-founded fear of persecution for one or more Convention reasons and that it did not have a good reason for rejecting those claims. That is not to say that on a rehearing the tribunal might not come to the same decision but, if it does, it must do so according to law.