SZTYZ v Minister for Immigration and Border Protection

The Tribunal's decision 6 The Tribunal accepted that the applicant was opposed to the Taliban, that he came from Mingora and that his wife was a nurse who worked in a hospital in Mingora and was transferred to Mansehra due to law and order difficulties in Swat in February 2009, that the Taliban was opposed to girls' education and employment outside the home and that, while it was in control of the Swat Valley, it enforced these views. However, the Tribunal noted that, even if, as the applicant claimed he and his wife had been threatened by the Taliban in 2008, it considered it relevant that the applicant had returned to Swat in 2009 and 2011 and that his wife and children continued to live in Mingora after his departure from Pakistan. 7 The Tribunal also accepted that when the applicant returned to Swat in 2009, after an altercation with his nephew, he was detained by the Taliban and then escaped. But again the Tribunal considered it relevant that the applicant returned to Swat in 2011 at which time he handed his nephew over to the army. 8 The Tribunal rejected a number of the applicant's claims including that his children had not been able to go to school, that his family was effectively under house arrest, that his actions in reporting his nephew to the army had increased the Taliban's animosity towards him or that there was a real chance that the severity of the situation in Pakistan, or specifically Swat, would deteriorate in the foreseeable future. 9 The Tribunal accepted that targeted killings continued to occur in Swat but had difficulty in accepting that there was a real chance that the applicant would be the victim of a targeted killing if he was to return to Swat or in the reasonably foreseeable future because, while he was opposed to the Taliban, he was not a prominent opponent. The Tribunal also noted that even if, as the applicant claimed, he and his wife had been threatened by the Taliban in 2008 saying that they were on a list and would be killed, the Taliban had not, on the applicant's evidence, made good that threat. The Tribunal observed that the applicant had been taken by the Taliban in 2009 but escaped and that he had considered it safe for him to return to Swat in 2011 and that his wife and children had continued to live there. 10 The Tribunal concluded that, on the evidence before it, there was not a real chance that the applicant would be persecuted for reasons of his real or imputed political opinion opposed to the Taliban if he returns to his home in Mingora now or in the reasonably foreseeable future. The Tribunal also considered and rejected the applicant's claim that he would be seriously physically harmed or killed by other militant Sunni groups in Pakistan. 11 The Tribunal did not accept that the applicant had a well founded fear of being persecuted for one or more of the five Convention reasons if he returned to Pakistan now or in the reasonably foreseeable future nor did it accept that there was a real risk that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan, he would suffer significant harm as defined in s 36(2A) of the Migration Act 1958 (Cth) (the Migration Act).

Proceedings in the Federal Circuit Court 12 The applicant sought judicial review of the Tribunal's decision in the Federal Circuit Court. He raised three grounds of review being that: (1) the Tribunal constructively failed to exercise its jurisdiction in considering the Refugee Convention criterion; (2) in finding that it did not have substantial grounds for believing that as a necessary and foreseeable consequence of being removed from Australia to Pakistan there was a real risk the applicant would suffer significant harm, the Tribunal asked itself the wrong question and thereby constructively failed to exercise its jurisdiction; and (3) the Tribunal failed to comply with s 425 of the Migration Act because it did not invite the applicant to give evidence and present arguments on the issue of why he returned to Swat when he claimed to have a well founded fear of harm. 13 In relation to the first ground the primary judge noted the applicant's submission that the Tribunal had fallen into error of the kind identified by the High Court in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 (S395/2002) relying on the view of McHugh and Kirby JJ at [43] and Gummow and Hayne JJ at [80]-[82]. The primary judge also noted that the applicant submitted that by "directing" his wife to cease work and by removing himself and his wife from Mingora in the past he had acted to suppress his own religious and/or political views and freedom and that, in assuming that his future conduct would be the same as his past conduct, the Tribunal reasoned that he had conducted himself in a discreet manner in the past and there was no reason to suppose he would not continue to do so if he returned home. 14 The primary judge held that the first ground was not made out. She found that the Tribunal's decision did not raise an issue to which S395/2002, or the line of authority following that case, is relevant. Her Honour held that in this case, unlike in S395/2002, the Tribunal found that there was not a real chance that the applicant would face a well founded fear of harm if he returned to Mingora, which was no longer under Taliban control. It did not ask whether the applicant could avoid persecution in the future or make any assumption about how persecution might be avoided by the applicant by a modification in his behaviour: SZTYZ at [51]-[52]. 15 The primary judge held that the Tribunal had regard to past events as a guide to what would happen in the future as an integral part of determining the chance of something occurring in the future. It did not treat what had occurred in the past as determinative of the future nor did it make any assumption about future behaviour: SZTYZ at [54]. 16 The primary judge also held that the Tribunal did not need to make a finding about whether the applicant had a well founded fear of harm in the past, as opposed to the date of its decision, and that it properly considered that issue in light of its conclusion about past events, the applicant's return to and his family's residence in Mingora and the current situation in his home area: SZTYZ at [56]. 17 In relation to the second ground the primary judge noted that the applicant contended that the Tribunal had asked itself the same question as it had asked in relation to the Refugee Convention finding and thus had failed to ask itself if there was a "real risk" that the applicant would suffer significant harm if he moved to Pakistan. 18 The primary judge held that, in circumstances where the Tribunal had found that the applicant could return to his home village where he did not face a real chance of serious harm amounting to persecution, it was open to it to conclude, based on its findings of fact, that it did not accept that there was a real risk that the applicant would be killed or would otherwise suffer significant harm at the hands of his nephew, the Taliban or other Sunni militant or terrorist groups as he claimed. Her Honour held that the Tribunal did not fall into an error of the nature considered in S395/2002: SZYTZ at [66]. 19 In relation to the third ground the primary judge noted that the applicant submitted that the Tribunal had erred in failing to ask him why he had returned to Swat in 2009 and 2011 if he feared the Taliban and that it had erred in failing to put its conclusion that it considered the fact that the applicant thought it safe to return at those times as relevant. The applicant submitted before the primary judge that this was not a matter obviously open on the material having regard to the delegate's decision. 20 The primary judge reviewed the transcript of the Tribunal hearing that was in evidence before her and found that the applicant was asked about his return to Mingora on several occasions during the hearing and that the relevance of those returns was made clear: SZTYZ at [76]. 21 The primary judge held that, while the Tribunal did not explicitly put to the applicant the possible conclusion that, because he had returned to his hometown several times and his family had returned to live there, there was a basis on which to find that his fear was not well founded, it did raise with the applicant his returns to Swat and the fact that his family lived there in the context of why he feared returning there now. The primary judge also held that the Tribunal was not obliged to put its thought processes to the applicant for comment: SZTYZ at [77]-[78]. 22 As none of the applicant's grounds were made out, the primary judge dismissed his application: SZTYZ at [80].

The application before this Court 23 The applicant now applies for an extension of time in which to file his notice of appeal. In his affidavit in support of his application, affirmed on 12 July 2016, the applicant says that: (1) he became aware of the primary judge's judgment on about 27 June 2016; (2) he was told about his options by his solicitors, including filing an appeal and applying for Ministerial intervention and the time limits that apply to each, but mistakenly thought that all of the applicable time limits were 28 days; (3) he did not return to his solicitors until 8 July 2016, the last day for filing of a notice of appeal. When he did his solicitors told him they could not file on that day because the "Application" had to be prepared and funds had to be provided by the applicant for that purpose; and (4) during the following week the applicant did all that he could to enable his application "to be lodged at the first available date". 24 A draft notice of appeal is annexed to the applicant's application in which the following two grounds of appeal are raised (as written): 1. Her Honour, in the judgement dated 17 June 2016, erred by failing to find that the Second Respondent made jurisdictional error in not considering the application of the High Court decision in S395/2002 v MIMA, 206 CLR 473. 2. Her Honour, in the judgement dated 17 June 2016, erred in failing to find that the Second Respondent made jurisdictional error by failing to comply with section 425 of the Migration Act 1958. 25 The Court's power to grant an extension of time in which to file a notice of appeal is discretionary. In considering whether leave should be granted the Court will usually consider whether the delay has been adequately explained, whether there would be any prejudice to the respondent and the merits of the substantive application, for the purposes of the application before me the merits of the applicant's proposed grounds of appeal: see for example Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-9 per Wilcox J; SZTQL v Minister for Immigration and Border Protection [2014] FCA 1317 at [4] per Allsop CJ.

Consideration 26 The delay in filing the notice of appeal was one week. It was caused by the applicant's own confusion. There is no suggestion that he was given the wrong advice. Nor can there be any suggestion, nor was it suggested, that the Minister would suffer any prejudice by reason of the delay. 27 The Minister submitted that the delay was inadequately explained. I disagree. The applicant has admitted his own confusion. I accept that explanation. The delay has been adequately explained. 28 The next issue for the Court to consider, and the critical issue on this application, is the merits of the proposed grounds of appeal. In my opinion, for the reasons set out below, they lack merit.

Ground 1 29 By this proposed ground of appeal the applicant in effect alleges that the primary judge erred in not finding that the Tribunal failed to apply the principles in S395/2002. The applicant submitted that, despite careful consideration of the issue, the primary judge's conclusion is incorrect. The applicant does not cavil with the primary judge's statement at [54] of her judgment that: The issue that was the subject of consideration in Appellant S395/2002 would have arisen if the Tribunal had made some assumption about future activity or future behaviour. However the mere fact that someone (whether it be the Applicant or his wife) had altered his or her behaviour in the past allegedly to avoid harm, does not in itself mean that error is established on the basis of the principles deriving from Appellant S395/2002. The Tribunal did not treat what had occurred in the past as determinative of the future. … 30 The applicant submitted that the relevant behaviour was that of his wife who had stopped working and that the issue was whether there had been a past modification to behaviour such that there had been conduct of the kind that arose in S395/2002. That is, the Tribunal should have considered whether on return the applicant would need to modify his behaviour, which it did not, and the primary judge failed to address that issue. 31 In Minister for Immigration and Border Protection v SZSCA (2014) 254 CLR 317 (SZSCA) at [17] a majority of the High Court (French CJ, Hayne, Kiefel and Keane JJ) said at [17]: The essential reasoning in S395 was that the Tribunal had diverted itself from its task of determining whether there would be a real chance that the applicants would be persecuted if they returned to Bangladesh, by focusing on an assumption about how the risk of persecution might be avoided. Gummow and Hayne JJ said that the inquiry was what might happen if the applicants returned, not whether adverse consequences could be avoided. It followed that the issue to which the correct inquiry was directed - whether the fear of persecution was well founded - had not been addressed. (footnotes omitted) 32 At [51] of her reasons, the primary judge referred to the judgment in SZSCA and observed that S395/2002 involved circumstances in which the Tribunal "in effect required an applicant to alter his or her behaviour in some way in the future". The primary judge then went on to observe that in this case the Tribunal did not ask whether the applicant could avoid persecution in the future or make any assumptions about how persecution by the Taliban might be avoided and, given the Tribunal's findings about the circumstances in Mingora, the fact that the applicant's wife might have changed her behaviour in the past did not raise an issue of the sort considered in S395/2002. The primary judge held that the Tribunal did not require or proceed on the basis that the applicant could or would avoid persecution by the Taliban or return to his home area by altering his behaviour either directly or in association with his wife: [53]. That analysis is in my view correct. 33 Moreover, the primary judge held that the Tribunal had regard to past events as a guide to what would happen in the future as part of determining whether there was a chance of something occurring in the future as it was entitled to do, citing Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559. 34 In my view there is no merit to ground 1. The ground alleges that the primary judge erred by failing to find that the Tribunal made a jurisdictional error in not considering the application of S395/2002. The primary judge concluded that S395/2002 had no application and that the Tribunal's reasoning did not transgress any principle from S395/2002. She did so after carefully considering the principles and the Tribunal's reasoning. There is nothing to suggest that the Tribunal imposed any expectation on the applicant in relation to his future conduct. The Tribunal did not need to ask the question that the applicant alleges it ought to have asked namely, whether on return the applicant would need to modify his behaviour.

Ground 2 35 By this proposed ground of appeal the applicant alleges that the primary judge erred in failing to find that the Tribunal failed to comply with s 425 of the Migration Act. 36 The applicant, relying on SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 (SZBEL), submitted that the obligation under s 425 of the Migration Act is related to issues rather than facts. The applicant further submitted that before the primary judge he had contended that the Tribunal placed significance on the fact that he had returned to Swat and that the Tribunal had not asked how that could have been if he feared the Taliban. That is, he submitted that particular issue was not put to him by the Tribunal. The applicant submitted that in circumstances where the delegate decided the applicant's application on a different basis, the issue needed to be raised. 37 The applicant noted the concession at [73] of the primary judge's judgment that: The First Respondent conceded that the Tribunal had not explicitly put to the Applicant the possible conclusion that, because he had been back to his home town of Mingora several times and his family had returned to live in Mingora, that was a basis on which to find his fear was not well-founded. 38 The applicant submitted that the Tribunal did not, as the Minister conceded, put to him, as it should have, that his returning to his hometown and the fact that his family lived in Mingora was a basis upon which the Tribunal could find that his fear was not well founded. The applicant submitted that the primary judge erred in finding at [78] that the Tribunal was not obliged to put its thought processes to the applicant for comment and that it sufficiently raised the fact of his past returns to Swat. The applicant contended that the requirement under s 425, as laid down in SZBEL, is to alert an applicant to issues not facts and that the applicant was not alerted to the issue because the Tribunal did not ask the applicant to explain why he returned to Swat if he feared the Taliban. 39 In SZBEL the High Court (Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ) said at [33]-[35]: 33 The Act defines the nature of the opportunity to be heard that is to be given to an applicant for review by the Tribunal. The applicant is to be invited "to give evidence and present arguments relating to the issues arising in relation to the decision under review" (s 425(1) (emphasis added)). The reference to "the issues arising in relation to the decision under review" is important. 34 Those issues will not be sufficiently identified in every case by describing them simply as whether the applicant is entitled to a protection visa. The statutory language "arising in relation to the decision under review" is more particular. The issues arising in relation to a decision under review are to be identified having regard not only to the fact that the Tribunal may exercise (s 415) all the powers and discretions conferred by the Act on the original decision-maker (here, the Minister's delegate), but also to the fact that the Tribunal is to review that particular decision, for which the decision-maker will have given reasons. 35 The Tribunal is not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the Tribunal. 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". That is why the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision. And unless some other additional issues are identified by the Tribunal (as they may be), it would ordinarily follow that, on review by the Tribunal, the issues arising in relation to the decision under review would be those which the original decision-maker identified as determinative against the applicant. 40 The primary judge had before her the transcript of the hearing before the Tribunal. Based on her review of that transcript she found that, while the Tribunal did not explicitly put to the applicant the possible conclusion that because he had returned to his hometown on several occasions there was a basis to find his fear was not well founded, it did raise "his past returns to Swat and the fact that his family still lived there in the context of asking why he feared returning there now". The conclusion at [78] which the applicant seeks to impugn follows that finding. The description by the primary judge of the matters raised as facts and of their relevance to the ultimate matter which the Tribunal had to consider, namely whether the applicant had a well founded fear of harm in his home area, does not detract from her Honour's finding that the issue was adequately raised. As the Minister pointed out, contrary to the position in SZBEL, here the Tribunal did, as is evident from those parts of the transcript set out by way of example in the primary judge's judgment, identify aspects of the applicant's account as important issues and asked questions that would have self evidently added to the issues that arose on the review, in particular, questions about the applicant's return to Swat. 41 In my opinion there is no merit to this proposed ground of appeal.

Conclusion 42 While in my opinion the applicant has sufficiently explained the reason for his delay in filing his notice of appeal, the grounds of appeal he raises lack merit. Accordingly, the applicant's application should be dismissed and the applicant ordered to pay the Minister's costs of the application as agreed or taxed. I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Markovic.