FEDERAL COURT OF AUSTRALIA

MZYXP v Minister for Immigration & Border Protection [2013] FCA 1352

THE COURT ORDERS THAT:

1.    The title of the first respondent to this appeal be amended from Minister for Immigration and Citizenship to Minister for Immigration and Border Protection.

2.    The appeal be dismissed.

3.    The appellant pay the first respondent’s costs of the appeal.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

INTRODUCTION

1    This is an appeal from a judgment of the Federal Magistrates Court (as it then was) dismissing an application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’). That decision affirmed the decision of a delegate of the first respondent (‘the Minister’) to refuse to grant the appellant a Protection (Class XA) visa (‘protection visa’).

2    In his notice of appeal, the appellant identified a single but particularised appeal ground, namely:

A.    The decision of the Court/Tribunal was made without jurisdiction or is affected by an error of jurisdiction.

PARTICULARS

(i)    The error identified by Hayne J in Plaintiff M13 is that the delegate in determining what was reasonable in the sense of practicable did not consider “the particular circumstances of the applicant for refugee status and the impact upon that person” of relocation of the place of residence within the country of nationality. The tribunal and the court have erred in their finding that the applicant could safely relocate to another urban centre in Pakistan, as it did not give proper consideration to the particular circumstances of the applicant and the impact it would have on him.

(ii)    The tribunal in making its decision as to whether it is reasonable for the applicant to relocate, should have taken into account linguistic differences as one of the factors it had to consider, as after all this is an inquisitorial process. How could the tribunal be satisfied in coming to its conclusion, if it has not ticked all the boxes.

(iii)    The real chance of risk test has not been properly considered should the applicant be returned to Pakistan and is not an attempt at merits review.

(iv)    The tribunal has relied upon dated country information and that is an important consideration in relation to the Taliban. This is tantamount to not taking into account the most current information and therefore a denial of natural justice, especially so in Pakistan where the political situation is so fluid.

(v)    The mental health of the applicant was not given sufficient weight, in that the psychologist’s reports were a relevant consideration not taken into proper account.

(vi)    The impact of the Taliban on the applicant was not taken into account.

(vii)    The applicant was denied natural justice in that the tribunal failed to ask relevant questions about the impact of the Taliban on the applicant.

(viii)    The tribunal failed to consider relevant country information supporting the applicant’s case.

(ix)    The tribunal did not properly consider the country information with regards [to] the applicant being a member of a particular social group, namely “membership of a wealthy family”, “individuals who have been educated at army schools”, “individuals who have resided and been educated in western countries”.

3    At the hearing of the appeal, the appellant was unrepresented, although he had the assistance of a Pashtu interpreter. He relied on written submissions headed “Applicant’s [sic] contentions of fact and law” filed on 12 March 2013 and an affidavit sworn by him on 19 November 2012. The Minister appeared by counsel and relied on written submissions filed on 18 and 22 March 2013. The second respondent filed a submitting appearance, save as to costs.

4    For the reasons stated below, I would dismiss the appeal.

BACKGROUND

5    The following facts are derived from the Tribunal’s statement of reasons.

6    The appellant is a citizen of Pakistan. He arrived in Australia in July 2008 as the holder of a Student (Class TU subclass 572) visa. He applied for a protection visa in September 2010.

7    In his protection visa application, which was supported by various documents, the appellant indicated that he had left Pakistan to pursue a ‘Western’ education and that he feared persecution by militant extremist groups, such as the Taliban, if he were to return. The appellant claimed that, by reason of his and his family’s liberal values and connection to the army, he feared being tortured or killed in a show of strength by a militant extremist group, or being forced to join such a group against his will. The appellant said that his liberal values and earlier study at a military college would make him a target wherever he lived in Pakistan. The appellant also said that terrorist organisations were aware of the nature of some of his mother’s previous work; and that he feared that, to hurt her, these groups might kill him. In this regard, he said that his mother had already received threats of violence against him. The appellant said that the authorities in Pakistan would be unable to protect him.

8    On 28 June 2011, the appellant was interviewed by a delegate of the Minister (‘the delegate’). The appellant provided documentary evidence, including evidence in support of a further claim concerning extremist responses to his mother’s employment.

9    On 5 July 2011, the delegate decided to refuse to grant the appellant a protection visa. The appellant applied to the Tribunal for a review of this decision on 22 July 2011.

THE TRIBUNAL DECISION

10    The appellant appeared before the Tribunal in January 2012, where he was assisted by a migration agent and an interpreter. At the Tribunal hearing, the appellant provided a number of media reports and internet articles in support of his claims. Following the hearing, his migration agent made further submissions in an email to the Tribunal, and attached further media reports and internet articles.

11    Before the Tribunal, the appellant confirmed that everything he had stated in his application and in his interview with the delegate was true. The appellant claimed that his family was vocal in its support of the Government of Pakistan, condemned the Taliban and advocated women’s education openly. He indicated that his deceased father and relatives had served, or were serving, in the Pakistani army. The appellant stated that his mother had received telephone calls from people threatening to harm him if he returned, unless she ceased working and remained indoors. He added that, whenever he travelled outside the army cantonment in which he lived in Pakistan, he was accompanied by a military guard in civilian dress arranged by one of his brothers-in-law. He claimed that a neighbour’s son had been abducted and killed and that bombings had occurred near his family home, including one at a near-by bakery. He also claimed that, when he was preparing for his military entrance exam, two men had approached the gatekeeper at his hostel and asked questions about him.

12    The Tribunal questioned the appellant about various aspects of his claims. Among other matters, the Tribunal asked why he had delayed in applying for a protection visa after reaching Australia; why the two men had not tried to contact him at his home in the 14 months prior to his departure for Australia; why a letter from the army school, which the appellant provided, was not on letterhead and did not name the author; and whether it was reasonable for the appellant to relocate elsewhere in Pakistan.

13    On 22 March 2012, the Tribunal decided to affirm the delegate’s decision. It notified the appellant’s migration agent of this decision the following day.

14    The Tribunal accepted that “members of the family of members of the army”, “individuals who have been educated at army schools” and “individuals who have resided and been educated in Western countries” were each distinct social groups, identifiable by a common characteristic beyond any shared fear of persecution; and that the appellant was a member of each of these groups. The Tribunal did not accept that “membership of a wealthy family” amounted to membership of a particular social group.

15    The Tribunal largely accepted the appellant’s evidence about his circumstances before coming to Australia, including his residence in army cantonments and his family’s connections to the Pakistani army. Despite concerns about the authenticity and impartiality of some documentary evidence provided by the appellant, the Tribunal accepted that the appellant’s mother’s employment at a school had become a source of controversy until she was forced to resign as a result of threats from extremist militant groups. The Tribunal also accepted that his mother received a letter threatening to harm her and the appellant if she did not change her lifestyle and that she was present at the bombing, referred to above, at a local bakery.

16    The Tribunal did not accept that extremist militants were looking for the appellant at any time before he came to Australia, or that his mother had received telephone calls threatening him. The Tribunal accepted that the appellant and his mother held moderate Sunni Muslim views and were critical of extremist militant groups, but found that they had not expressed those views in public fora. The Tribunal accepted that the appellant might be perceived to have been westernised to a degree by having lived and studied in Australia.

17    On the basis of the available country information, the Tribunal found that this information indicated family members of army members, of women teachers and of teachers at co-educational schools who reside in army cantonments in the Khyber Pakhtunkhwa province (“KPP”) and the Federally Administered Tribal Areas (“FATA”) faced a real chance of being seriously harmed at the hands of the Tehrik-i-Taliban Pakistan (‘TTP’) and other extremist Sunni Muslim militant groups in those areas. The Tribunal did not accept that the available country information showed that these individuals would also face this risk of harm in parts of Pakistan other than the KPP and FATA. The Tribunal also found that Sunni Muslims with moderate religious and political beliefs did not face a real chance of being seriously harmed by extremist militant groups throughout Pakistan if they had not expressed their views in public fora. The Tribunal determined that there was no real chance of serious harm by extremist groups merely because an individual was perceived to have been westernised by residence and education in a Western country, or because an individual came from a wealthy family.

18    As a consequence, the Tribunal found that, even assessing the elements of the appellant’s profile cumulatively, the appellant did not face a real chance of being seriously harmed in Pakistan other than in the KPP and FATA. The Tribunal further found that it was reasonable to expect him to relocate to an urban centre outside the KPP and FATA, such as Rawalpindi, Islamabad, Lahore or Karachi. In the course of assessing the reasonableness of the appellant’s relocation outside the KPP and FATA, the Tribunal found that the appellant was young, healthy and relatively well educated; that it would be reasonable to expect that he could find employment and support himself; that he would not need to support his mother as he claimed; and that his mother would not need to leave her job or residence, or live with him.

19    The Tribunal also noted that the appellant had claimed to be stressed by what was happening in Pakistan in 2009; and that, on 6 February 2012, it had received an email from the appellant’s migration agent, which, in addition to providing some further country information, advised that the appellant wished to provide a psychologist’s report in relation to his mental health, for which at least another three weeks were needed. The Tribunal’s reasons recorded that “[i]t is now over seven weeks since the Tribunal received that e-mail and the applicant has not provided a psychologists report to the Tribunal”. The Tribunal went on to say that it accepted that the appellant was stressed by events in Pakistan in 2009 and “may continue to be stressed by these things”, but found that he:

… appeared to understand the questions he was asked and to provide evidence and present arguments at the hearing in a way that indicated he had capacity to participate in the hearing despite any stress he may have been suffering.

20    While the Tribunal accepted that “the applicant may find it stressful to return to Pakistan and to relocate to one of the urban centres in Pakistan outside the KPP and FATA”, it did not “accept that the degree of stress the applicant may suffer or the effect the relocation may otherwise have on his mental health would be such that it would be unreasonable to expect him to relocate to one of those places.”

21    On this basis, the Tribunal was satisfied that the appellant did not have a well-founded fear of persecution within the meaning of the Convention relating to the Status of Refugees (done at Geneva on 28 July 1951, 189 UNTS 137) as amended by the Protocol relating to the Status of Refugees (done at New York on 31 January 1967, 606 UNTS 267) if he returned to Pakistan now or in the reasonably foreseeable future. It affirmed the decision of the delegate.

THE FEDERAL MAGISTRATE COURT

22    On 30 April 2012, the appellant filed an application for judicial review of the Tribunal’s decision in the Federal Magistrates Court. This application was brought four days out of time, but an extension of time was granted by a Registrar of the Court with the Minister’s consent.

23    The grounds of the appellant’s judicial review application were as follows:

1.    The Member in coming to his decision has not understood the Principle of relocation. She has not understood the High court decision in regard to this matter. See Plaintiff M 13-2011v Minister for Immigration and Citizenship [2011] HCA 23 (23 June 2011).

2.    The Tribunal not understand the concept of real chance of risk to me should I be returned to Pakistan.

3.    The Tribunal in making its assessment of real chance of risk or harm the Member relied on dated country information about Pakistan. The Member failed to understand the reality of the networking and cooperation between the many Taliban groups in Pakistan.

4.    In relying on dated information about Pakistan I was not afforded natural justice or procedural fairness.

5.    The Tribunal coming to her decision did not understand my mental health condition nor did it place weight on the Psychologists reports provided.

6.    The Member failed to understand that I would be persecuted by the Taliban for my imputed political views.

7.    In failing to understand this aspect at No. 6 I was not afforded natural justice or procedural fairness as the Member did not ask or failed to ask questions on this point.

8.    The Member failed to consider relevant information supporting my case; relevantly the DFAT Country Report referred to at the hearing.

9.    In failing to consider this aspect at No. 6 I was not afforded natural justice or procedural fairness by the Member.

10.    The member has erred in assuming that Pakistan is homogenous and that [t]her[e] are no ethnic differences and issues that arise from these differences especially linguistic differences.

11.    The Member did not understand my Membership of a particular social group and the fact that members of this social group are targeted throughout Pakistan.

24    The learned Federal Magistrate found that the Tribunal had applied the correct test for relocation by considering whether it was reasonable to expect the appellant to relocate, having regard to his particular circumstances and the impact on him of relocation: MZYXP v Minister for Immigration & Anor [2012] FMCA 960 at [11]–[14] (‘FMC Judgment’). His Honour referred to SZMCD v Minister for Immigration and Citizenship (2009) 174 FCR 415, Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 and Plaintiff M13/2011 v Minister for Immigration and Citizenship (2011) 277 ALR 667 (‘Plaintiff M13’) at 671-672 [21]-[22] (Hayne J) as providing the applicable test. His Honour found that, in the appellant’s case, unlike in Plaintiff M13, the Tribunal had taken into account where the appellant had lived in Pakistan and from where he would have to relocate. Accordingly, his Honour rejected the first ground of the appellant’s judicial review application.

25    The Federal Magistrate found that the Tribunal had clearly considered whether the appellant faced a “real chance of risk”. His Honour held that there was nothing to establish that the Tribunal did not understand this concept, and rejected the second ground as an impermissible attempt to review the merits of the Tribunal’s decision: FMC Judgment, [18] -[20].

26    In relation to the appellant’s challenge to the currency of the country information upon which the Tribunal relied, the Federal Magistrate found that, while decision-makers must rely on the most current information available to them, there was no principle that a failure to refer to the most recent country information was necessarily a legal error: FMC Judgment, [35]. His Honour found that the Tribunal relied on extensive country information from late 2011, which was even more current than the information provided to the Tribunal by the appellant: FMC Judgment, [36]. His Honour accordingly rejected the appellant’s third and fourth grounds.

27    The Federal Magistrate held that the Tribunal’s finding that the appellant “had capacity to participate in the hearing despite any stress he may have been suffering” was not amenable to review: FMC Judgment, [43]. His Honour found that the Tribunal could not place any weight on a psychologist’s report if it had not received it by the time it wrote its decision: FMC Judgment, [44]. Ground 5 was therefore rejected.

28    Ground 6 was also rejected by the Federal Magistrate as an attempt to review the merits of the Tribunal’s finding that people with moderate political views did not face a real chance of being seriously harmed by extremist militant groups throughout Pakistan: FMC Judgment, [47] - [49]. His Honour found that the Tribunal was not required to question the appellant about his imputed political views, but merely to consider his claim as it had done. Grounds 7 and 9 were rejected accordingly: FMC Judgment, [52]–[54], [59]–[61].

29    The Federal Magistrate dismissed ground 8 on the basis that “[i]t is for the Tribunal to decide which country information it relies on” (referring to NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10) and on the basis that the Tribunal had “set out extensive detail of the country information before it … and its consideration of it”: FMC Judgment, [56].

30    Rejecting ground 10, the Federal Magistrate found that there was no basis for the appellant’s assertion that the Tribunal assumed that Pakistan was homogenous with no ethnic or linguistic differences. His Honour found that the Tribunal’s finding that it was reasonable for the appellant to relocate to another urban centre within Pakistan contained an implicit finding that the appellant was not from any minority religious or ethnic group in Pakistan: FMC Judgment, [63]. His Honour noted that the Tribunal had had regard to the appellant’s residence in just such an urban centre, namely Lahore, for some months in early 2007. His Honour held that the appellant had failed to raise any relevant linguistic differences that were an impediment to his relocating, despite having the opportunity to do so; and that he had failed to establish his case: FMC Judgment, [65]-[66].

31    The Federal Magistrate also dismissed ground 11. His Honour held that it was open to the Tribunal to find, as it did, that there was not a real chance of the appellant being seriously harmed by reason of his membership of a particular social group (FMC Judgment, [69]), and also that members of wealthy families do not constitute a particular social group in Pakistan (FMC Judgment, [70]). His Honour held ([74]–[75]):

It is apparent that the Tribunal understood and considered the range of particular social groups that the applicant could be seen as belonging to. It then assessed the risks that such members could face in the provinces of the KPP and FATA. It found that those risks would not be faced if the applicant relocated outside those areas.

Those findings of fact are not amenable to review.

32    Finally, the Federal Magistrate rejected the appellant’s assertion (made at the hearing) to the effect that the Tribunal was biased because it reached its decision on the day before the complementary protection provisions in s 36(2)(aa) of the Migration Act 1958 (Cth) (‘Migration Act’) came into operation. His Honour held that, in failing to provide any particulars or evidence supporting this assertion, the appellant had failed to discharge the “heavy onus” required of a party making an allegation of bias: FMC Judgment, [79]-[82], [85]. His Honour further held that, even if the appellant’s decision had been delayed until s 36(2)(aa) had come into effect, the provision would have been of no assistance to the appellant as the Tribunal’s finding that the appellant could safely relocate within Pakistan would have meant that there would also be no real risk of significant harm under that provision: FMC Judgment, [87].

33    Finding that no ground of review had been established, his Honour dismissed the appellant’s judicial review application. The appellant appeals against this judgment.

THE APPEAL

34    The ‘particulars’ of the appellant’s claim that the Tribunal’s decision was “made without jurisdiction” or was “affected by an error of jurisdiction” are set out at the commencement of these reasons. Hereafter, I discuss each ‘particular’ as though it alleged a separate ground of appeal. Before doing this, however, I address a separate issue raised by the appellant at the hearing.

The psychologist’s report

35    This was a claim that the appellant had given a psychologist’s report about his mental health to his migration agent at the time of the Tribunal review for delivery to the Tribunal. The Tribunal’s reasons for decision make it plain, however, that no such report was given to it prior to its decision. The appellant stated that he believed that his migration agent failed to deliver the report to the Tribunal and relied on this assertion in support of his appeal.

36    The Tribunal’s reasons record that, after the hearing, it had afforded the appellant an opportunity to provide further documents in support of his application. The Tribunal stated that it “gave the applicant until 7 February 2012 to do so” and that, in an email on 6 February 2012, the appellant’s representative said, amongst other things, that the appellant “intended to provide a psychologist’s report in relation to his mental health” and that he “required at least another three weeks in order to do so”. The Tribunal returned to this topic towards the conclusion of its reasons, observing:

The Tribunal notes that at the hearing the applicant stated that he had been stressed by what was happening in Pakistan in 2009 which had prevented him from continuing studies in Australia and that in his email to the Tribunal received 6 February 2012 the representative advised that the applicant wished to provide a psychologist’s report in relation to the applicant’s mental health within three weeks. It is now over seven weeks since the Tribunal received that email and the applicant has not provided a psychologists [sic] report to the Tribunal. …

37    Since the Court recognised that, in some limited circumstances, a failure to provide a document to the Tribunal might render a decision reviewable for jurisdictional error or a constructive failure to exercise jurisdiction (without fault on the Tribunal’s part), the Court gave the appellant an opportunity to provide some evidence that, prior to the Tribunal’s decision, such a report existed and that the appellant had given the report to his migration agent.

38    For the reasons stated hereafter, the appellant failed to provide sufficient evidence to satisfy me that he had obtained such a report and that his migration agent had failed to provide it to the Tribunal. The appellant failed to persuade me that, in this regard, he had a tenable basis for alleging jurisdictional error or constructive failure to exercise jurisdiction. Accordingly, it has proved unnecessary to call on the Minister to make submissions on the issue.

39    There seems little doubt that a decision-maker may, without personal fault, deny procedural fairness in some circumstances: see, for example, Hot Holdings Pty Ltd v Creasy (2002) 210 CLR 438 (‘Hot Holdings’) at 448 [22] (Gleeson CJ) and SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189 (‘SZFDE’) at 206 [49]. In the latter case, a fraud “on” the Tribunal of a supposed migration agent led the High Court to hold that there had been a constructive failure to exercise jurisdiction.

40    In SZFDE, the Court (Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ) held that a decision of the Tribunal to refuse the appellant a protection visa was vitiated by a constructive failure to exercise jurisdiction, despite the Tribunal itself being “blameless” for the error: see SZFDE at 193 [5] and 195 [14]. In that case, fraudulent conduct on the part of a third party, falsely claiming to be entitled to practise as a solicitor and a migration agent, led to the visa applicants not attending the Tribunal hearing and, in consequence, the rejection of their application. The Court held that the fraud of the third party “had the immediate consequence of stultifying the operation of the legislative scheme to afford natural justice to the appellants”: SZFDE at 206 [49]. As the Court said, the fraud critically undermined a core function of the Tribunal as contemplated by the statutory regime established by the Migration Act. Their Honours explained (at 206 [51]-[52]):

No doubt Mr Hussain was fraudulent in his dealings with the appellants. But the concomitant was the stultification of the operation of the critically important natural justice provisions made by Div 4 of Pt 7 of the Act. In short, while the Tribunal undoubtedly acted on an assumption of regularity, in truth, by reason of the fraud of Mr Hussain, it was disabled from the due discharge of its imperative statutory functions with respect to the conduct of the review. That state of affairs merits the description of the practice of fraud “on” the Tribunal.

The consequence is that the decision made by the Tribunal is properly regarded, in law, as no decision at all. This is because, in the sense of the authorities, the jurisdiction remains constructively unexercised. …

41    Furthermore, a failure to provide a document to the Tribunal may, depending on the circumstances, result in a failure to accord procedural fairness to a visa applicant. Muin v Refugee Review Tribunal & Ors and Lie v Refugee Review Tribunal & Ors, both reported in (2002) 190 ALR 601 (‘Muin and Lie’), are illustrative of this proposition. In Muin and Lie documents relevant to the applications of Mr Muin and Ms Lie for a protection visa were not provided to the Tribunal. In the specific context of their cases, a majority of the High Court held that the Tribunal’s decisions were affected by jurisdictional error.

42    Relevantly, for present purposes, in Mr Muin’s case, the Tribunal had informed him that it had asked the Secretary of the Department of Immigration and Multicultural Affairs “to send a copy its documents” (i.e., those before the original decision-maker when the original decision was made) and stated that it would “look at” all these documents when it received them. The Tribunal later confirmed that it had “looked at all the material relating to [his] application”: see Muin and Lie at 617 [59] (Gaudron J). Part B of his original application (which listed 31 items of evidence) had not, however, been provided by the Secretary to the Tribunal. Mr Muin’s hearing before the Tribunal proceeded on his mistaken belief that the Tribunal had received Part B of his application. Critically, the parties agreed that “if [Mr Muin] known otherwise, he would have taken steps to correct that situation”: see Muin and Lie at 617 [59] (Gaudron J). In separate judgments, Gaudron, Gummow, Kirby, Hayne and Callinan JJ held that the Tribunal had denied Mr Muin procedural fairness because he was not “given an opportunity to place before the tribunal the material and submissions which, on the agreed facts, it is accepted that he … would have submitted if not mistaken about what was before the tribunal”: Muin and Lie at 660 [257] (Hayne J). In similar, though not identical circumstances, Gaudron, Gummow, Kirby and Hayne JJ also held that there was a failure to accord procedural fairness to Ms Lie.

43    Neither SZFDE nor Muin and Lie can assist the appellant in this case to show jurisdictional error or a constructive failure to exercise jurisdiction. In Muin and Lie, it was critical that “each plaintiff was led to believe, by what the tribunal had said, that it had material relevant to [the claim] which it did not”: see Muin and Lie at 660 [256] (Hayne J). The present case is not one in which the Tribunal in some way misled the appellant about its possession of a psychological report concerning him. On the contrary, in the present case, at the appellant’s request, the Tribunal afforded the appellant an opportunity to provide a psychologist’s report to it, but such a report was not ultimately given to it. Further, this case falls well outside the circumstances under consideration in Hot Holdings and the authorities to which Gleeson CJ referred in making his remark in that case that “[p]rocedural unfairness can occur without any personal fault on the part of the decision-maker”: see Hot Holdings at 448 [22].

44    In this case, too, there is no evidence that there has been anything approaching a fraud “on” the Tribunal in the SZFDE sense. As the Court itself indicated in SZFDE, the situation in that case was unusual. Thus, the Court said (at 207 [53]):

The significance of the outcome in this appeal should not be misunderstood. The appeal has turned upon the particular importance of the provisions of Div 4 of Pt 7 of the Act for the conduct by the Tribunal of reviews and the place therein of ss 425 and 426A. In the Full Court French J correctly emphasised that there are sound reasons of policy why a person whose conduct before an administrative tribunal has been affected, to the detriment of that person, by bad or negligence advice or some other mishap should not be heard to complain that the detriment vitiates the decision made. The outcome in the present appeal stands apart from and above such considerations.

    (Emphasis added)

45    The evidence that the appellant has placed before the Court does not show that the appellant’s migration agent ever had in his possession a psychological report about the appellant, let alone that the agent failed, for some reason, to make it available to the Tribunal.

46    At the hearing of the appeal, the appellant sought to have the Court accept a different report of a psychologist, who had given his assessment pro bono at the request of the Asylum Seeker Resource Centre, in support of his appeal to this Court. I declined to accept that report, amongst other reasons, because, on its face, it could have no bearing on the outcome of this appeal. The report, which was dated 7 March 2013, had evidently been written following an assessment made after the appellant had received the judgment of the Federal Magistrates Court. The report was neither in evidence before the Tribunal nor before the Federal Magistrate; and, having regard to this, there was no basis on which it could be said to be relevant to any issue arising in this Court on appeal.

47    As earlier indicated, however, also at the hearing of the appeal, the appellant asserted that there had been an earlier psychological report, which he believed his representative had failed to provide to “the Immigration or RRT”; and, in consequence, the Court gave him leave to adduce evidence of this assertion and belief.

48    The appellant filed an affidavit affirmed on 24 April 2013, in which he said that:

1.    I … received my first report on 6th Jan 2012 and gave it to my legal representative [at] that time for Refugee Review Tribunal.

2.    I have obtained copy of that first report by my psychologist at that time 6th Jan 2012 by EDWIN KLEYNHANS for RRT.

49    A copy of a letter dated 6 January 2012 and a report written by Mr Kleynhans, psychologist, was annexed to the appellant’s affidavit. The letter relevantly read as follows:

[The appellant] referred himself to me for the first time on 20 December 2011 as he feared persecution should he return to Pakistan where he is originally from. … I understand that that he applied for a Protection Visa … and needed a psychological report as evidence in relation to his mental state.

…

The attached confidential report outlines the findings of psychological tests.

50    At its outset, the accompanying report stated that “[m]ost of the information in this report is based on the 2-hour clinical interview I had with [the appellant] on 20/12/2011 as well as the 1 hour consultation on 4/1/2012”. At the end of the report, the report reiterated “[t]he major part of this report is based on the clinical interviews I had with [the appellant]”, although it went on to state:

However, I also had access to the following documents:

●    Notification of Decision from The RRT;

●    Acknowledgment of a Valid Application for a Protection Visa from DIAC;

●    Invitation to appear at The RRT.

    (Emphasis added)

51    Notwithstanding the Court’s invitation to do so, the appellant provided no material that showed that he or anyone else had given a copy of this or any other report to his representative at the time of the Tribunal hearing on 10 January 2012, or at any time prior to the Tribunal’s decision on 22 March 2012. There is nothing in the Tribunal reasons that indicates that either the appellant’s representative or the Tribunal had such a report. The Tribunal’s reasons make no reference to any discussion of the existence of a psychologist’s report at the hearing or subsequently. Instead, the first mention of a psychologist’s report in the Tribunal’s reasons is in connection with the email that the Tribunal said it received from the appellant’s representative on 6 February 2012 seeking three further weeks in which to “provide a psychologist’s report in relation to [the appellant’s] mental health”: see [36] above. As already stated, the Tribunal went on to note that, as at the date of its decision, it had received no such report.

52    A copy of an email apparently sent on 6 February 2012 by the appellant’s then representative (included in the material before the Federal Magistrate and therefore before this Court) stated, unequivocally, that the appellant was “waiting for a report from his Psychologist”. This email relevantly read:

In addition to the above the application requests additional time to provide a report regarding his mental health. He advises that he is waiting for a report from his Psychologist.

To reiterate I request that the Tribunal to grant an extension of time for my client to provide the additional information indicated above. My client advise [sic] that he will need at least another three weeks.

(Emphasis added)

The Tribunal’s account is substantially confirmed by this email. If the appellant in fact received and gave the psychologist’s report to the appellant’s representative on 6 January 2012 or thereabouts, this report should have been in the representative’s possession at the time of the Tribunal hearing on 10 January 2012. In any event, even if it was not, the representative’s statement that he would “need at least another three weeks” to provide a report makes little sense if in fact he or the appellant already had the report.

53    In these circumstances, it would appear more likely than not that the appellant’s representative did not have a psychologist’s report when he emailed the Tribunal in early February 2012. It is, however, unnecessary to rule on this, because the critical fact is that the appellant has not established any basis for his belief that his representative had the psychologist’s report in his possession and, for some reason, failed to make it available to the Tribunal before it made its decision.

54    At this point, I note too that there is at least one other peculiarity about the material that the appellant has filed in the Court. This centres on the statement in the report (at p 7) that the psychologist also had “access to … Notification of Decision from the RRT”. A letter from the Tribunal headed “Notification of Decision …” was not sent to the appellant until 23 March 2012, the Tribunal’s decision being dated 22 March 2012. These dates fall over two months after 6 January 2012, which is the date on Mr Kleynhans’ report.

55    Since there is nothing in the material to justify the view that the appellant’s failure to provide the Tribunal with a psychologist’s report was the fault of his representative, it is unnecessary to make any other findings about the evidence that the appellant has placed before the Court. There is no need to determine when a psychological assessment of the appellant was made or when any consequential report was produced and made available to the appellant.

56    So far as the appellant is concerned, it can at best be said that a psychologist’s report was not delivered to the Tribunal, though one was foreshadowed, and the explanation for its non-delivery is unknown. As has been said many times in this Court and elsewhere, the Court has no general jurisdiction to intervene to remedy the consequences of a party’s mistake, whether due to incompetence or negligence. Having allowed the appellant leave to produce some evidence of the allegation that he made at the hearing concerning his former migration agent’s failure to provide the Tribunal with a psychological report, I am unable to discern any basis for attributing a constructive failure to exercise jurisdiction or jurisdictional error to the Tribunal’s decision. It is unnecessary to discuss this claim further.

Ground 1

57    I turn now the appellant’s ‘particulars’, as set out in his notice of appeal. The first particular, which I treat as Ground 1, was, in substance, that:

…the tribunal and the court have erred in their finding that the applicant could safely relocate to another urban centre in Pakistan, as it did not give proper consideration to the particular circumstances of the applicant and the impact it would have on him.

58    Referring to Plaintiff M13 at 671-672 [21]-[22], where Hayne J reiterated the joint judgment in SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18 (‘SZATV’) at 27 [24] (Gummow, Hayne and Crennan JJ), the appellant argued that the Tribunal “failed to consider the objective impact of the possible relocation” on him.

59    The issue of relocation raised, as the appellant said, the separate and distinct issue of reasonableness. Thus, in SZATV, Gummow, Hayne and Crennan JJ said (at 26-27 [23]-[24]):

The Minister framed the issue, for a situation such as that presented by this appeal, as being whether it be reasonable, in the sense of practicable, for the appellant to relocate to a region where, objectively, there is no appreciable risk of the occurrence of the feared persecution. This formulation does not suffer from the defects urged by the appellant. It does not turn upon a “hypothetical assumption”, nor does it prevent account being taken of the presence of a subjective fear of persecution, nor does it treat the presence of a “safe area” within the country of nationality as determinative of the existence of a well-founded fear of persecution.

However, that does not mean that, without more, the formulation by the Minister is sufficient and satisfactory. What is “reasonable”, in the sense of “practicable”, must depend upon the particular circumstances of the applicant for refugee status and the impact upon that person of relocation of the place of residence within the country of nationality.

60    In the earlier decision of the Full Federal Court in Randhawa Black CJ considered the nature of the inquiry imposed on the Tribunal when considering whether relocation was “reasonable”. At 443 his Honour said:

In the present case, the delegate recognised the width of the inquiry required by considering whether the appellant’s Sikh culture prevented him from relocating in India. Once the question of relocation had been raised for the delegate’s consideration she was of course obliged to give that aspect of the matter proper consideration. However, I do not consider that she was obliged to do this with the specificity urged by counsel for the appellant. I agree that it would ordinarily be quite wrong for a decision-maker faced with a relocation possibility to take the general approach that there must be a safe haven somewhere without giving the issue more specific attention, but the extent of the decision-maker’s task will be largely determined by the case sought to be made out by an applicant. In the present case the applicant raised several issues, all of which were dealt with by the decision-maker. If the appellant had raised other impediments to relocation the decision-maker would have needed to consider these but having regard to the issues raised by the appellant and to the material that was before the decision-maker on the issue of relocation she was entitled to come to the conclusion that the appellant could reasonably be expected relocate elsewhere in India.

    (Emphasis added)

61    Black CJ’s approach continues to be an accepted statement of the law in this area. The Tribunal’s consideration of relocation in this case had to be referrable to the case that the appellant made with respect to relocation or “the framework set by the [appellant’s] particular objections ... to relocation”: see SZMCD v Minister for Immigration and Citizenship (2009) 174 FCR 415 (‘SZMCD’) at 439 [124] (Tracey and Foster JJ). In relation to relocation, it was not correct to say, as the appellant did, that the Tribunal’s inquiry was as to the “objective impact of the possible relocation” on him. Rather, the inquiry, though objective, was circumscribed by the case made by the appellant with respect to the relocation issue.

62    The Tribunal’s reasons for decision show that it raised squarely with the appellant the possibility that “he would not face a risk of harm if he lived outside an army cantonment in population centres such as Islamabad, Rawalpindi or Lahore”. The Tribunal evidently informed the appellant that it would consider “whether it would be reasonable to expect him to relocate to one or all of those places”. Unlike the Tribunal in Plaintiff M13, the Tribunal in this case proposed these particular places as providing options for relocation outside an army cantonment and beyond the risk of harm that it considered the appellant would face if he was to return to his home area or other location within the KPP or FATA.

63    The appellant’s written submission referred to other decisions of this Court, such as NAIZ v Minister for Immigration and Multicultural Affairs and Indigenous Affairs [2005] FCAFC 37 (‘NAIZ’) and Franco-Buitrago v Minister for Immigration and Multicultural Affairs [2000] FCA 1525 (‘Franco-Buitrago’), presumably in support of an argument that his case should be considered as akin to the position of the visa applicants in them. For example, with respect to NAIZ, the appellant submitted that:

[I]n NAIZ… the failure of the Tribunal to explore the significance of a 55-year old unemployed widow having no one in Fiji to look after her caused Branson J to conclude that the Tribunal did not apply the right test when it considered that it was satisfied that the applicant would be able to relocate within Fiji.

The Tribunal is required to consider the practical realities facing a person in determining whether it is reasonable to expect them to relocate. Those practical realities are not limited to matters related to persecution for a Convention reason …

64    This passage omitted a critical element of the Court’s determination in NAIZ that the Tribunal fell into jurisdictional error. Reference to Branson J’s reasons for judgment in NAIZ makes plain that the Tribunal’s error was not a mere failure to consider a ‘practical reality’, but rather that it failed to consider an objection made by the appellant that, in reality, relocation would be practically unreasonable. As Branson J held at [22] (North J agreeing):

I do not accept the appellant’s submission that there was no probative evidence on which the Tribunal could conclude that it would not be unreasonable for the appellant to relocate within Fiji. However, the summary way in which the Tribunal dealt with the issue of relocation, including its failure to explore the significance of the appellant’s references to having no-one in Fiji ‘to look after her’, causes me to conclude that the Tribunal did not apply the right test when it concluded that it was satisfied that, with the assistance of her daughter, the appellant would be able to relocate within Fiji. The Tribunal did not, as the passage from Randhawa set out … above requires, give consideration to the practical realities facing the appellant with respect to accommodation and care should she seek to relocate within Fiji. This is not to say that it was not open to the Tribunal to conclude that the appellant could deal with those practical realities, perhaps with financial help from her daughter. However, the Tribunal was required to give consideration to how, in a practical sense, the appellant could reasonably be expected to relocate within Fiji.

    (Emphasis added)

65    Likewise, in Franco-Buitrago, Tamberlin J held (at [17]) that:

[I]n reaching a conclusion on this question the RRT must not fall into an error of law by excluding from consideration matters which are central to a determination of that issue. The reasoning in Randhawa makes it clear that the circumstances to be taken into account are wide ranging, with strong emphasis on the practical realities of an applicant's position such that the cultural problems of relocation can be taken into account. In the present case the issue of Juan's health was specifically raised by the applicant as a matter for consideration. The medical condition of the child could reasonably be considered to bear on the question whether relocation is reasonable, or feasible in a practical sense. For example, it may be considered that it is not reasonable to expect the family to relocate in a “safe area” remote from those medical and hospital services and facilities for Juan which are normally found in a large city. The need for medical treatment for the child may also require the parents to visit Pereira where they could experience a real danger of persecution. These practical considerations arising from the child's predicament could limit the number and type of places suitable for relocation and carry weight in determining the question whether relocation in the country is reasonable in the circumstances of any particular case.

    (Emphasis added)

66    The Tribunal considered and rejected the appellant’s objections to relocation (as stated both at the hearing and in post-hearing submissions) in more than a “summary way”. The Tribunal detailed the appellant’s objections in its statement of reasons ([85]-[91], [99]). It considered and rejected them ([138]-[143]), as it was open to the Tribunal to do.

67    The appellant’s objections were variously that:

    The Taliban were “everywhere” and that it would be easy for them to trace someone like him anywhere in Pakistan (at [85]).

    Even if he lived outside an army cantonment his social circle was made up of military people and he would, as a result, remain identifiable as supporting the military (at [85]).

    He would always remain connected to the army and that army families do not live outside cantonments because it is too dangerous (at [87]) and that all military families and all cantonments are under threat, such that it is only “luck if people are not harmed” (at [86]).

    If he had to go and live in another part of Pakistan while outside an army cantonment he would have to take his mother with him. This presented numerous practical difficulties for him including that he did not have the financial resources to buy a house for himself and his mother, and that the family property was tied up in the army cantonments (at [88]). His migration agent later also submitted that, since the appellant was his mother’s only son, he would be expected to look after her on his return; and that this meant that, given his poor financial situation, his proximity to his mother needed to be taken into account in assessing the reasonableness of relocation (at [91]).

    He would be easily identified as being westernised and did not want to change his life to appear otherwise (at [88]).

    He was at risk of harm because he would be assumed to be financially well off because he had been westernised and living in a Western country for several years (at [91]).

    He lacked the qualifications and financial resources to be able to relocate to any other part of Pakistan (at [99]).

68    The Tribunal rejected the appellant’s objections to his relocation on the basis of the continued risk of harm throughout Pakistan as a member of an army family or perceived supporter of the military (at [137]). The Tribunal’s conclusion, derived from a synthesis of country information (outlined at [132]), was that:

… even cumulatively assessing the elements of the applicant’s profile – including that he is the family member of a number of members of the military, the son of a woman teacher who [h]as taught at a coeducation school and a now deceased Army officer, a moderate Sunni Muslim who holds beliefs critical of the TTP and other extremist Sunni … Muslim militant groups, was educated at military schools, attempted to be selected for Army service and is from a relatively wealthy family – the Tribunal does not accept that the applicant faces a real chance of being serious harmed in other parts of Pakistan outside the KPP and FATA.

69    The appellant’s objections to his relocation on the basis of his “westernisation”, perceived “westernisation” or perceived wealth were also rejected by the Tribunal. After reviewing the available country information, the Tribunal concluded (at [136]):

The Tribunal also finds that the available country information set out above shows that there is not a real chance of being seriously harmed by the TTP and other extremist Sunni Muslim militant groups merely because an individual is perceived to have been westernised by residence and education in a Western country or because an individual comes from a wealthy family.

70    The Tribunal also rejected the appellant’s objections based on the claimed need to provide care and support to his mother. The Tribunal “noted” (at [140]) that the appellant’s “mother had been living alone and working in [an army cantonment] while the applicant has been in Australia since July 2008”. It described as “speculative” the possibility the appellant’s mother would feel obliged to leave her job and current residence to live with appellant, given her moderate religious views. Further, the Tribunal concluded that the appellant too had lived independently from his mother since July 2008 and “so could continue to do so if he were to return to Pakistan”.

71    The Tribunal also rejected (at [141]) that the appellant’s educational history or financial circumstances would prevent him from being able to “gain employment or otherwise support himself to a degree that would mean that it was unreasonable for him to relocate”. It characterised the appellant as a “young, healthy, relatively well educated man” and found that he “has been able to reside in Australia for a number of years on his own and that he also lived for a number of months in Lahore in early 2007” (at [138]).

72    There is nothing in the Tribunal’s reasoning to which I have thus far referred that might indicate any relevant error. The merits of the essentially factual conclusions reached by the Tribunal were not for the Federal Magistrates Court (nor this Court on appeal) to re-determine: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (‘Wu Shan Liang’) at 277 (Brennan CJ, Toohey, McHugh and Gummow JJ), 291-292 (Kirby J).

73    The appellant made various other submissions on the merits of the Tribunal’s decision, such as, for example, that the Tribunal should have read the country information differently or that it should have taken another view about the suggested places for relocation. These were not matters falling for the Federal Magistrate’s consideration. Nor can they be examined in this Court. Similarly, it was not open to either the Federal Magistrates or this Court to assess the new arguments that the appellant apparently sought to raise regarding the insufficiency of housing in Lahore and his necessary residence in slum conditions. It was for the appellant to make his objections to his relocation known to the Tribunal, if he wished them to be considered by it: Rhandawa; and Abebe v Commonwealth of Australia (1999) 197 CLR 510 (‘Abebe’) at 576 [187].

74    The appellant has not shown that the Federal Magistrate erred in considering the manner in which the Tribunal addressed the reasonableness of the appellant’s relocation. Accordingly, Ground 1 must fail.

75    In so far as Ground 1 might also be thought to raise the question whether there was some relevant error in failing to consider the appellant’s mental health in the context of the proposed relocation, this question is addressed under Ground 5. In so far as Ground 1 might also be thought to raise the question whether the Tribunal “failed to take into account [the appellant’s] family, language, culture, ancestral links, cuisine, tradition, friends, employment and other links which are peculiar to KPP and FATA”, this question is addressed under Ground 2, to which I now turn.

Ground 2

76    By the second of the particulars (see [2] above), which I refer to as Ground 2, the appellant claimed that “the Tribunal in making its decision as to whether it is reasonable for the applicant to relocate, should have taken into account linguistic differences as one of the factors it had to consider”. In written submissions, the appellant reiterated that “[t]he tribunal ha[d] … failed to take into account his family, language, culture, ancestral links, cuisine, tradition, friends, employment and other links which are peculiar to KPP and FATA”; and that unspecified “linguistic differences” formed part of the “practical realities” facing him, which the Tribunal was obliged to consider.

77    At the hearing, the appellant described this ground of appeal in a different way. By his interpreter, the appellant said:

THE INTERPRETER: If I move or relocate to other part of Pakistan which is there are Pashtun people are minority, from my outlook, from my identity card, from the way I speak, people will notify me that I am from north-west frontier of Pakistan. It’s easy. It is easy to be targeted or to be known that I am Pashtun from that part of Pakistan. Best whenever you show your ID card that address has been written there, which part of Pakistan you are.

It seems to me that that the appellant was trying to say was that that the Tribunal failed to consider that, if he were to relocate to one of the nominated cities outside the KPP or FATA, he would be identified immediately by the way he speaks as being a Pashtun person from the north-west frontier of Pakistan and, in consequence, be a target for harm. This was an additional or alternative argument to that raised by Ground 2, which apparently focussed on the importance of maintaining a sense of identity, by way of family relationships and linguistic and cultural practices, in any relocation scenario. Given that the appellant appeared only with the assistance of an interpreter, I will consider both arguments.

Linguistic and other differences – “cultural considerations

78    The appellant’s submission that the Tribunal relevantly erred because it failed to take into account certain unspecified linguistic differences or his cultural heritage more generally must be rejected. It is, within the scheme elaborated by the Migration Act, largely for the visa applicant to “advance whatever evidence or argument she [or he] wishes to advance in support of her [or his] contention that she [or he] has a well-founded fear of persecution for a Convention reason”: Abebe at 576 [187]. In addition, in the context of the Tribunal’s inquiry into the reasonableness of relocation, it is, as already discussed, largely for the applicant to raise with the Tribunal the impediments that he perceived in the way of his possible relocation to Rawalpindi, Islamabad, Lahore or Karachi: Randhawa at 443.

79    In stating Ground 2, the appellant asked “how could the Tribunal be satisfied in coming to its conclusion, if it has not ticked all the boxes?”: see [2] above. This question does not, however, arise in light of the authorities just mentioned. As they make clear, there is no standard list of considerations that must be “ticked off” by the Tribunal; instead the considerations that must be addressed are generally the ones that the visa applicant raises or that fall within the framework that the visa applicant’s objections have set: see, for example, SZMCD at 438-439 [124].

80    As already stated, the Tribunal’s statement of reasons shows that it raised squarely with the appellant the possibility that it would consider “whether it would be reasonable to expect him to relocate to one or all of” Islamabad, Rawalpindi or Lahore and engaged with the appellant’s objections to these centres as possible places for his relocations on a number of occasions. The Tribunal’s reasons indicate too that the appellant understood the significance of this discussion and, after a brief adjournment, in fact raised further objections. The Tribunal also allowed the appellant an opportunity to make additional submissions following the hearing. At no stage, however, did the appellant point to any difficulty with his possible relocation based on his linguistic profile; nor did he mention aspects of his general cultural identity as an impediment to this relocation. There was no error in the Federal Magistrate’s judgment in this regard. Ground 2 must therefore fail.

81    The appellant’s submission that the Tribunal failed to consider that his way of speaking would put him at risk because it would designate him as being Pashtun from the north-west frontier of Pakistan also reveals no error on the part of the Tribunal. There is nothing in the Tribunal’s statement of reasons for its decision that indicates that this particular objection to his relocation was raised with the Tribunal. The appellant did not submit that he had raised it with the Tribunal during the hearing of the appeal.

82    Instead, what is clear from the Tribunal’s reasons is that the appellant raised a number of objections to relocation outside the KPP and FATA on the basis of risk of harm. The appellant’s objections to relocation (see [67] above) included that: (a) the Taliban were “everywhere” and were able to trace someone even if he were relocated to another part of Pakistan; (b) his social circle in a new location would remain made up of military people and would, as such, designate him as supporting the military; and (c) that he would remain “always remain connected to the army”. After a brief adjournment, the appellant also stated that “wherever he went in Pakistan he would be seen to be westernised and easily identified as such”. No other related risks of harm were apparently raised in the post-hearing submissions (see [99] of the Tribunal’s reasons). As already noted, the Tribunal considered and rejected each of these objections, as it was open to it to do.

83    Further, the Tribunal’s reasons indicate that it had considered whether the appellant had a minority status capable of creating a risk to his safety outside the KPP or FATA. At [138] of the reasons, the Tribunal found that the appellant was “not from any of the minority religious or ethnic groups in Pakistan”.

84    Accordingly, I would reject the appellant’s additional submission under Ground 2.

Ground 3

85    By the third of the particulars, which I treat as Ground 3, the appellant submitted that “the real chance of risk test has not been properly considered should the applicant be returned to Pakistan and is not an attempt at merits review.”

86    Irrespective of the final clause of the appellant’s third particular, this challenge was an attempt at merits review. At [16] of its reasons for decision, the Tribunal articulated clearly the nature of a “real chance” within its discussion of the task of assessing whether a visa applicant has a “well-founded fear of persecution”, further discussed at [17]. To the extent that the appellant’s submissions could be construed as a challenge to the Tribunal’s finding that the appellant did not face a real chance of being seriously harmed in Pakistan by reason of his membership of a particular social group other than in the KPP and FATA, this finding has already been considered under Ground 1. A challenge to this finding fails for the reasons set out under Ground 1.

87    The remainder of the appellant’s submissions apparently on this point, for example, that “the Country information referred to by the tribunal tells the tale of the history of generalised and targeted violence against Shias, members of the army, teachers and those perceived as being anti Taliban in Pakistan …” and that “[t]he very report the tribunal refers to … states that … ‘TTP is currently active across the whole of Pakistan’” invites only a re-consideration of the merits of the Tribunal’s treatment of the country information. A reconsideration of the Tribunal’s findings, or the weight it should have attributed to certain pieces of evidence is impermissible on review before this Court: see, for example, Wu Shan Liang at 277, 291-192; Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 (‘Lee’) at [27] (French J); Tefonu Pty Ltd v Insurance and Superannuation Commissioner (1993) 44 FCR 361 (‘Tefonu’) at 375 (Beazley J).

88    Ground 3 thus discloses no relevant error in the Federal Magistrate’s judgment.

Ground 4

89    By the fourth of the appellant’s particulars, which I refer to as Ground 4, the appellant challenges the Tribunal’s decision (and therefore the Federal Magistrate’s judgment) on the basis that the Tribunal relied upon dated country information in circumstances that made “it … tantamount to not taking into account the most current information and therefore a denial of natural justice, especially so in Pakistan where the political situation is so fluid”.

90    The appellant’s written submissions referred the Court to a number of reports for 2011 and 2012, at least some of which appear not to have been before the Tribunal. One of the reports cited by the appellant was a 2012 Asian Human Rights Commission article, which the appellant referenced for the proposition that “the Pakistan military are complicit in Sunni extremist attacks on Shias and other minority groups”. The appellant also referred to the UNHCR’s 2011 Eligibility Guidelines for Assessing the International Protections Needs of Members of Religious Minorities from Pakistan, which the appellant cited as stating that “the largest Muslim minority in Pakistan, Shias, are the target of violent attacks by Sunni fundamentalist groups through the country…”. In addition, the appellant referred to an annual report of the United States Commission on International Religious Freedom, dated 20 March 2012. In relation to this material, the appellant submitted that there was “nothing in the decision of the tribunal to suggest that the tribunal had referred to such information”.

91    After referring to this material, the appellant’s written submissions advanced propositions about what the Tribunal should have concluded. That is, the appellant submitted that, on the basis of reports such as those to which he referred, “[t]he only conclusion the Tribunal could have come to in the present case, taking all of the country information into account, was that the risk of Convention persecution exists in Pakistan as a whole, and that safe relocation within that country is therefore not reasonably open to the applicant”. Similarly, the appellant argued that, on the basis of this recent country material referred to above, “[t]he Tribunal should have made [the] finding … that the essential and significant reason for the persecution feared is the Convention reason of religion, namely, liberal Sunni Islam who does not support the ideals of the Taliban/TTP”.

92    These submissions (summarised in [90]-[91] above) do not disclose any relevant error in the Tribunal’s decision, nor any appellable error in the Federal Magistrate’s judgment. They can only be read as inviting the Court to second guess the Tribunal’s decision on the merits in circumstances where, as detailed below, the Tribunal made findings based on the country information before it that were open to it to make.

93    The Tribunal did not make the findings that the appellant said it should have made because, after its review of the country information, it concluded (at [136]) that:

Sunni Muslims who hold moderate religious and political beliefs, including but not limited to actual or imputed beliefs in the importance of education of women, and are critical of the TTP and other extremist Sunni Muslim militant groups but had only expressed their views socially rather than in any other public fora do not face a real chance of being seriously harmed by those groups throughout Pakistan.

94    This finding was open to the Tribunal based on the country information it recounted in its reasons at [103]; the evidence given by the appellant at the hearing that “he would speak openly in shops and in other social situation about his critical views of the fundamentalist groups in Pakistan [but] he never spoke publicly at any meetings or recorded his political views”; and its finding on the basis of this evidence (at [131]) that it “accept[s] that the applicant and his mother hold moderate Sunni Muslim views and beliefs and are critical of the extremist Sunni Muslim militant groups operating in Pakistan … [but] that he and his mother have only ever expressed those views socially and have not done so in any public fora”.

95    Further (and relevantly for [101] below) the part of the reports to which the appellant referred related to violence against Shia Muslims and religious minorities (which the Tribunal expressly found the appellant was not (at [138])) and not Sunni Muslims (to which the appellant self-identified). The Tribunal was not obliged to distil from the appellant’s preferred reading of various items of country information, some of which was apparently not before the Tribunal, some other claim that the appellant now considers would have had merit.

96    The terms of Ground 4, read with the entirety of the appellant’s submission, indicated that the appellant also contended that the Tribunal relied on dated information because it did not refer to the highlighted portions of the 2012 documents or documents that said similar things published in 2011 or 2012 at all. On this ground, the Minister submitted both that the argument that the “Tribunal relied on ‘dated’ country information fails on the facts”, and that the “the choice and assessment of country information is a factual matter for the Tribunal”.

97    The origin of what might be termed an “obligation” on the Tribunal to consider the most recent country information available to it was described by Rares J in SZJTQ v Minister for Immigration and Citizenship (2008) 172 FCR 563 (‘SZJTQ’); and see also Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114 (‘MZYTS’). In SZJTQ (at 573 [39] to [40]), Rares J explained that:

Often, circumstances can change radically in the applicant for review’s country of origin between the time he or she arrived in Australia and when the decision-maker makes a decision under s 36(2) of the Act. In this time period, repressive governments may be toppled, democracies may suffer coups d’État and continuing governments may change their domestic policies to become more or less oppressive.

If the decision-maker has actual notice of a recent and significant matter affecting the question whether the applicant for a protection visa has a well-founded fear of persecution in his or her country of origin, the subject-matter, scope and purpose of s 36(2)(a) require the decision-maker to base his or her decision, as to whether the fear claimed is well-founded, on that information: Peko-Wallsend 162 CLR at 45. This is not to say that the decision-maker is obliged to find that the applicant in fact has satisfied him or her that the applicant, for example, has a religious belief as claimed simply because the latest information actually available to the decision-maker (ie before him or her) supports a conclusion of persecution of adherents of that religion in the applicant’s country of origin. Rather, it is to say that in evaluating the claimed fear, the most recent information is relevant and must be considered.

(Emphasis added)

98    To the extent that the Minister may have submitted that the Tribunal had complete liberty to “choose” what country information it took into account (as opposed to choosing which country information it adopted as giving the best or most clear and authoritative snapshot of the state of play in a particular country), this submission must be rejected. As Rares J’s reasons in SZJTQ indicated and the Full Court of this Court recently clarified in MZYTS, in the context of particular claims made by a visa applicant and the volatility of a particular political situation, the Tribunal may be required to consider particular country information before it, in order to perform its statutory task.

99    Nevertheless, I do not consider that the Tribunal, in this case, failed to consider “recent and significant matter[s] affecting the question whether the [appellant had] a well-founded fear of persecution”: see SZJTQ as quoted above. The Tribunal set out the country information it relied on in its decision, which included information submitted by the appellant and its own research yielding reportage from 2009 to 2012. Several of the cited reports were clustered around late 2011. The most recent of reports specifically cited was January 2012. The country information documents provided by the appellant at the Tribunal hearing and in his post-hearing submissions were dated between March 2009 and February 2012. The reports provided by the appellant at the Tribunal hearing were apparently put forward by him as evidence of the political and security conditions in Pakistan. These conditions were clearly addressed and assessed by the Tribunal, with reference to a range of country information, including the reportage in late 2011.

100    Further, the reports provided by the appellant following the hearing were relied on in support of particular claims, namely: (a) that his mother was injured at the bombing of a bakery near her home; (b) that General Aslam’s son was killed during a mosque bombing where military personnel were the targets, but military families were also killed; (c) that another mosque was bombed within 5 minutes of his mother’s home; and (d) that people were attacked close to the applicant’s mother’s home or city. Each of these specific claims was also addressed in the broad. The Tribunal accepted (a) at [128] of its reasons; and (c) and (d) find a measure of acceptance at [134]. To the extent that (b) related to an attack in Rawalpindi, outside the appellant’s home area, the Tribunal rejected the overall claim to which this evidence related -- that “family members of members of the military or of women teachers and teachers at coeducational schools would face a risk of harm at the hands of the TTP and other extremists Sunni Muslim groups in other parts of Pakistan other than the KPP and FATA”. The claim was rejected having regard to all of the country information before it: see the Tribunal’s reasons at [135]. This finding was clearly one that was open to the Tribunal to make. The Tribunal was not, as has been repeatedly said, required “to give a line-by-line refutation of the evidence for the claimant either generally or in those respects where there is evidence that is contrary to findings of material fact made by the tribunal”: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 58 ALD 609 at 625 (McHugh J). That there was no line by line refutation does not indicate here that the Tribunal did not consider the recent materials before it.

101    The Tribunal decision was not affected by jurisdictional error simply because it did not cite the portions of the 2011 and 2012 reports selected by the appellant and referred to above. As already noted, it would appear that at least some of country information to which the appellant referred on this appeal was not before the delegate or the Tribunal. Thus, the Tribunal did not have “actual notice” notice of it in the sense described in SZJTQ. Further, as intimated earlier, it may be doubted whether this country information could be described as “recent and significant” (to use Rares J’s words in SZJTQ at 573 [40]) when considered by reference to the appellant’s actual claims.

102    There is no basis to attribute to the Tribunal an error of the kind described in Ground 4. No relevant error has been shown in the judgment of the Federal Magistrate.

Ground 5

Mental health reports

103    By the fifth of the appellant’s particulars, which I refer to as Ground 5, the appellant claimed that his “mental health … was not given sufficient weight, in that the psychologist’s reports were a relevant consideration not taken into proper account.” The Tribunal’s reasons for decision showed that no such reports about the appellant’s mental health were given to it before it made its decision. Neither of the two psychologists’ reports proffered to the Court at the hearing of the appeal was before the Tribunal when it made its decision. Further, despite the inquisitorial character of the Tribunal, the onus remained on the appellant to make his or her case before the Tribunal: see SZQFS v Minister for Immigration and Citizenship [2011] FCA 1244 (‘SZQFS’) at [17] and the authorities cited there. Since no psychologist’s report was part of the appellant’s case before the Tribunal (except perhaps in so far as its production was foreshadowed by the appellant’s then representative in the email of 6 February 2012), no question can logically arise about the Tribunal’s failure to give such a report “sufficient weight”, let alone about its failure to consider it at all (other than to acknowledge that, as at the date of the decision, the time sought in the email had expired).

104    To the extent that Ground 5 raised the Tribunal’s failure to consider the January 2012 psychological report because of the alleged failure of the appellant’s migration agent, it must be rejected for the reasons set out above.

Mental health generally

105    With respect to the Tribunal’s consideration of the appellant’s mental health generally, the Minister submitted that the appellant “claimed that he was ‘stressed by the events that occurred in Pakistan in 2009 and could not continue studying’ [but] had otherwise presented no evidence that he was suffering from a mental health condition”. It was on this basis that the Minister maintained that the appellant had “simply asserted that he was ‘stressed’”. The picture of the appellant’s mental health provided by the Tribunal was not, however, as simple as that which the Minister sought to advance. Whilst the appellant described himself as “very stressed” after mid-2009, this was not all he said. The Tribunal’s reasons for decision recorded (at [56]) that he had detailed a decline in his mood and capacity to work, study and function in the community from mid-2009. The Tribunal stated that:

The applicant confirmed that he came to Australia on a student visa …[and] initially started studying at Swinburne University but after six months changed his course to study business at Austwide. He stated that he studied there for almost one and a half years but left after one year because he could not focus and was very stressed. He confirmed that he stopped studying at the end of the first half of 2009. After that he stayed indoors for weeks and undertook casual work occasionally. His mother had contacted him and told him she was scared because she was by herself which stressed him out so that he could no longer concentrate.

(Emphasis added)

106    According to the Tribunal’s reasons, when, at the Tribunal hearing, the Tribunal questioned the appellant about his claim that he had withdrawn from tertiary study because he was “stressed”, the appellant again reiterated that “he had stopped studying because he was so stressed that he could no longer work, which meant he could no longer afford to pay his course fees”: see Tribunal’s reasons at [80].

107    It is plain enough from the Tribunal’s reasons that it was well aware of this aspect of the appellant’s case and that it took account of possible mental health issues in determining that relocation outside the KPP and FATA was reasonable. It is important to note, at this point, that the appellant’s youth, health and capacity to gain adequate employment underscored the Tribunal’s decision that it was reasonable for the appellant to relocate to a region in Pakistan outside his former home. At [138], it said that:

[T]he Tribunal must decide whether it is reasonable in all the circumstances for the applicant to relocate to another part of Pakistan outside the KPP and FATA. The Tribunal finds that the applicant is a young, healthy, relatively well educated man who is not from any of the minority religious or ethnic groups in Pakistan. Further the Tribunal finds that the applicant has been able to reside in Australia for a number of years on his own and that he has also lived for a number of months in Lahore in early 2007.

Later, at [141], the Tribunal stated that it:

… did not accept that the applicant’s educational history or financial circumstances would prevent him from being able to gain employment and otherwise support himself to a degree that it was unreasonable for him to relocate to one of the urban centres in Pakistan outside the KPP and FATA … .

And, at [142]-[143], the Tribunal concluded that it:

… accepts that the applicant was stressed by what was happening in Pakistan during 2009 and that he may continue to be stressed by these things. However, the Tribunal finds that the applicant appeared to understand the questions he was asked and to provide evidence and present arguments at the hearing in a way that indicated that he had capacity to participate in the hearing despite any stress he many have been suffering.

In light of the above the Tribunal accepts that the applicant may find it stressful to return to Pakistan and to relocate to one of the urban centres in Pakistan outside the KPP and FATA but does not accept that the degree of stress the applicant may suffer or the effect relocation may otherwise have on his mental health would be such that it would be unreasonable to expect him to relocate to one of those places.

(Emphasis added)

108    It is clear from this that the Tribunal did in fact consider the appellant’s mental health as a component of the reasonableness of relocation. It is not open to the Court to re-assess the merits of a matter of this kind, after it has been duly considered by the Tribunal: see Lee at [27] and Tefonu at 375.

109    In considering whether the Tribunal had duly considered the mental health issue, the Federal Magistrate referred to the Tribunal’s assessment that the appellant “had capacity to participate in the [Tribunal] hearing despite any stress he may have been suffering”: see FMC Judgment, [42]. This kind of consideration is commonly mentioned when questions of fair hearing and credibility are raised by the appearance of mentally ill refugee applicants before the Tribunal: see Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553; Minister for Immigration and Citizenship v SZNVW (2010) 183 FCR 575. In this case, the Tribunal treated this consideration as contributing to its assessment of the appellant’s mental health more generally. The Federal Magistrate discerned no error in this approach; and, in the circumstances of this case, nor do I. Ground 5 therefore is not made out.

110    Reading the Tribunal’s reasons as a whole, this consideration was only one of a number that informed the Tribunal’s mental health assessment and contributed to its finding about the reasonableness of relocation. Other factors, in particular, that the appellant had been able to reside in Australia for a number of years on his own (see [107] above, quoting [138] of the Tribunal’s reasons), were referred to in this connection. In the circumstances of the appellant’s case, including that there was no expert or other independent report about his mental health, it was open to the Tribunal to consider that these and the other matters to which it referred justified its assessment of the issue and a finding that relocation within Pakistan was reasonable.

Ground 6

111    By the sixth of the appellant’s particulars, which I refer to as Ground 6, the appellant claimed that the “impact of the Taliban on [him] was not taken into account”. I accept that, in a case like this one, a failure by the Tribunal to take into account the claimed impact of what was said to be the major contributor to an applicant’s fear of persecution would be likely to give rise to jurisdictional error. The Tribunal made no such error in this case. It is clear that the Tribunal took into account the impact of the Taliban on the appellant: see, for example, the Tribunal’s reasons at [132]-[136] and [144]-[145]. The Federal Magistrate correctly discerned no error in this regard.

112    To the extent that this ground of appeal invited the Court to consider the ‘weight’ to be given to particular facts in the Tribunal’s reasoning, this invitation must be refused: see Lee at [27] and Tefonu at 375.

113    Ground 6 does not therefore disclose any error.

Ground 7

114    By the seventh of the appellant’s particulars, which I refer to as Ground 7, the appellant claimed that he was denied natural justice in that the Tribunal failed to ask relevant questions about the impact of the Taliban on him. The appellant did not at any point identify any questions that he claimed were relevant and had not been asked by the Tribunal. As stated earlier (see [100] above), the Tribunal in fact explored various questions about the impact of the Taliban on the appellant’s safety in the KPP and FATA, as well as in other parts of Pakistan.

115    Before the Federal Magistrate, the appellant apparently made a similar argument as to the asserted failure of the Tribunal member to “ask questions” regarding whether the appellant would be persecuted by the Taliban for his imputed political views. This argument was rejected because, in the Federal Magistrate’s view, the “Tribunal was required to consider the claim” and not to “question the applicant about his imputed political views” (FMC Judgment, [52]).

116    In a similar vein, the Minister sought to rebut the appellant’s claim in general terms by reference to Flick J’s summary of the authorities in SZQFS at [17] (referring to Kioa v West (1985) 159 CLR 550 at 587 (Mason J); Abebe v Commonwealth of Australia (1999) 197 CLR 510 (‘Abebe’) at 576 (Gummow and Hayne JJ); Minister for Immigration and Multicultural Affairs v Cho (1999) 92 FCR 315 at 324 (Tamberlin and Katz JJ); Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at 405 (Kirby J); SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 (‘SZBEL’) at 164 (Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ)). The Minister submitted that “it is for an appellant to make out his case”.

117    It is well accepted that, in making its decision, the Tribunal must identify and raise with the visa applicant “the issues arising in relation to the decision under review”: SZBEL at 162-163 [33] to [35]. In the present case, however, the “impact of the Taliban on the applicant” was specifically raised by the Tribunal. Questions on this topic are indicated in its reasons between [68] and [80] (inclusive). For example, the Tribunal asked the appellant questions including “if there were any other instances where he or his family were attacked or harmed by the TPP or other fundamentalist groups in Pakistan other than the incidents he already described to the Tribunal” and “if there were any other reasons, other than the reasons he had already put before the Tribunal, for why he feared being harmed if he went back to Pakistan”: see Tribunal’s reasons, [73] and [75]. The appellant stated that there were not.

118    It is clear that the Tribunal raised the impact of the Taliban on the appellant and that he understood what was in issue. To the extent that Ground 7 implied that the Tribunal failed to ask otherwise “relevant” questions, this must be rejected. The Tribunal asked questions that were relevant to its statutory task. The Tribunal’s task did not extend to asking questions that the appellant now considers may have elicited answers that would have persuaded the Tribunal to vary the decision of the Minister. As is made clear by authorities such as Abebe and SZBEL, there is no obligation, beyond that imposed by the Migration Act on the Tribunal, to make out the parameters of, or shape, the visa applicant’s claim in a manner favourable to the applicant.

119    Ground 7 is therefore unsuccessful.

Ground 8

120    By the eighth of the appellant’s particulars, which I refer to as Ground 8, the appellant claimed that the Tribunal failed to consider relevant country information supporting his case.

121    Ground 8 raises much the same matters as considered under Ground 4. Ground 8 is rejected for the reasons stated in relation to Ground 4.

Ground 9

122    By the ninth of the appellant’s particulars, which I refer to as Ground 9, the appellant claimed that the Tribunal did not properly consider “the country information with regards [to] the applicant being a member of a particular social group, namely ‘membership of a wealthy family’, ‘individuals who have been educated at army schools’ [and] ‘individuals who have resided and been educated in western countries’”.

123    Ground 9 is also an impermissible attempt to secure a review of the merits of the decision made by the Tribunal. The Tribunal plainly gave “proper consideration” to the appellant’s claim to be a member of these particular social groups in the context of the country information. The Tribunal’s consideration of the country information relating to individuals who have been educated at army schools is clearly set out in its reasons at [104] to [110] and revisited in its findings from [132] and following. Its consideration of country information relating to individuals who have resided and been educated in western countries is summarised in its reasons at [136], referring to the country information analysed by it earlier in its reasons. This country information apparently included that discussed at [103], which reported that the focus of Taliban violence was “tribal leaders who oppose them, rival local militant leaders, individuals that have, in its view violated Sharia law and the Pakistani police and the army”; and that also reported that “Government officials, academics, religious scholars, columnists and members of the development sector” were amongst those targeted in the context of “a campaign by the Taliban against educated Muslims in Pakistan who speak out against the militants”.

124    The Tribunal rejected, at [136] of its reasons, that there was a real chance of harm because an individual came from a wealthy family, on the basis of the country information before it. This analysis was not, however, strictly necessary, given its finding (at [123] of its reasons) that membership of a wealthy family did not of itself amount to membership of a particular social group in Pakistan. There is no indication that this finding was not open to the Tribunal.

125    Ground 9 is therefore unsuccessful.

Complementary protection

126    No issue concerning s 36(2)(aa) of the Migration Act was raised by the notice of appeal, although issues touching s 36(2)(aa) were raised in the Federal Magistrates Court and were referred to orally at the hearing of the appeal.

127    There is nothing on this topic in the Federal Magistrate’s reasons for judgment or that was said at the hearing that would provide a basis for a finding of appellable error.

DISPOSITION

128    For the reasons stated above, I would dismiss the appeal, with costs.

Associate:

Dated:    12 December 2013