FEDERAL COURT OF AUSTRALIA

BFS16 v Minister for Immigration and Border Protection [2017] FCA 142

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the costs of the first respondent, as agreed or assessed.

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

REASONS FOR JUDGMENT

ROBERTSON J:

Introduction

1    This appeal is from orders made by the Federal Circuit Court of Australia on 6 October 2016 dismissing the application for judicial review of the decision of the Administrative Appeals Tribunal (the Tribunal) dated 26 April 2016 affirming the decision not to grant the appellant a Protection (Class XA) visa.

2    The Tribunal found the appellant to be a 38-year-old Muslim from Peshawar, Pakistan. He arrived in Australia on 27 July 2013 holding a student visa with a passport issued to him by the Islamic Republic of Pakistan. He applied for the Protection visa on 24 December 2013, claiming to fear harm from the Taliban because he is from a prominent family of Shia Muslims who are involved with the Tehreek Fiqh-E-Jaffieriya (TNFJ). The appellant said this is a Shia religious organisation.

The Tribunal’s findings

3    The Tribunal found that the appellant is a national of Pakistan and assessed his claims against Pakistan.

4    The Tribunal accepted that the appellant was born in Peshawar, Pakistan in April 1977, that his father passed away in 1978 and that his older brother, two sisters and mother remained in Pakistan.

5    As I have indicated, the appellant claimed to be a Shia Muslim coming from a prominent family in Peshawar who had been long associated with the TNFJ. The appellant claimed that he was personally involved with the TNFJ since about 2003, as a supporter, media worker and translator. He claimed that shortly after his arrival in Australia, his uncle was shot and killed in Peshawar by the Taliban and that the Taliban subsequently threatened his immediate family members with death because they were “American spies”. The appellant said that he feared being persecuted in Pakistan by the Taliban and other Sunni extremist groups because he is a Shia Muslim and because of his membership of his family and his and their association and involvement with the TNFJ. He also claimed to fear being persecuted by the Federal Investigation Agency (FIA) who suspected him of involvement in people smuggling.

6    For a number of reasons, which are set out below, the Tribunal had serious concerns about the reliability of the appellant’s evidence in support of his claims and did not find him to be a reliable or credible witness, which caused it to have little confidence in accepting his claims, despite the existence of a number of pieces of corroborative evidence that, on their face, supported his claims.

7    Following the hearing in the Tribunal, the Tribunal invited the appellant, in accordance with s 424A, to comment on and respond to the inconsistencies between his initial written and oral evidence and the information given by the United Kingdom authorities. The Tribunal said it had carefully considered his comments and explanations for why he knowingly gave and maintained false evidence.

8    The Tribunal said, at [86], that the appellant provided inconsistent and confused evidence about his claims that his uncle was shot by the Taliban and that the Taliban delivered a letter to his family after his uncle’s funeral, causing his family to flee Peshawar.

9    Having reviewed various other matters which the Tribunal said undermined the appellant’s credibility and caused it to have further concerns about the degree of confidence it could have in accepting his evidence as reliable, the Tribunal said, at [100]:

Accordingly, on the evidence before it, the Tribunal does not accept any of the applicant’s evidence that he or the other members of his family were members or supporters of the TNFJ or the UWF, or that he or they were associated or involved with, or worked for, the TNFJ or the UWF in Pakistan or the UK or Australia, or that he has ever engaged in any public activities in support of the TNFJ or any other religious or political group or organisation in Pakistan or the UK or Australia, as claimed, or that he is, was or ever has been, a ‘vocal’ or ‘activist’ Shi’a, as he described himself. Nor does it accept, on the evidence before it, that the applicant or any member of his family have a profile outside their local community in Peshawar. Nor does it accept, on the evidence before it, that the applicant’s uncle was the person referred to as Mazhar Hussain who was shot and killed in Peshawar on or about 31 July 2013, or that the applicant or any member of his family has been mistreated, threatened, attacked, killed or harmed in anyway, or subjected to extortion, blackmail or intimidation, for reasons of his or their religious beliefs, practice or identity, or their reputation and standing in the community as wealthy landowners, by the Taliban or any other extremist group or person. For all of the above reasons, on the evidence before it, the Tribunal does not accept that the applicant or his family have ever come to the adverse attention of the Taliban or any other Sunni extremist group, or that they ever received a warning in person or by ‘night letter’ or note from the Taliban or other Sunni extremist group in Pakistan. Nor does it accept that his family members have been forced to, or have left, their home in Peshawar for the reasons claimed, or that they have been moving ‘from place to place’.

10    The Tribunal said, at [101], that in making those findings, it had considered the numerous pieces of documentary evidence provided by the appellant to support various aspects of his claim. However, none of the documents he submitted, which were all copies, provided an independent source of verification for the particular claims the appellant made and, ultimately, the Tribunal’s assessment of the veracity of each document depended on its assessment of his reliability as a witness, particularly as the independent information referred to in the delegate’s decision and by DFAT indicated that document fraud is rife and prevalent in Pakistan.

11    At [109], the Tribunal did not accept that the appellant was a member of any of the particular social groups including ‘well-known and prominent Shi’a family in Peshawar with a long association with a Shi’a religious group, including the TNFJ or the UWF’ or ‘well-known and prominent Shi’a family in Peshawar’ or ‘wealthy Shi’as’ or ‘Shi’as in Pakistan who provide financial assistance to promote Shi’a activities’ or ‘people who have anti-Taliban political and religious views’ or ‘TNFJ members’, and it did not accept that there was a real chance the appellant would suffer serious harm or a real risk that he would suffer significant harm for any of those reasons if he returned to Pakistan in the reasonably foreseeable future. The Tribunal rejected the majority of the claims made by the appellant and the only aspect of his claims that it did accept were that he is a Shia Muslim from Peshawar.

12    At [110], the Tribunal said that it did not accept that, in the event that the appellant returned to Pakistan, he would wish to engage in or with any religious or political group such as the TNFJ, or in any related or similar ‘activist’ or public activities, in the future. The Tribunal was prepared to accept that, in accordance with his faith, he would attend a Shia Mosque from time to time and participate in religious gatherings and processions which were held from time to time in association with Shia religious events and festivities. Outside those activities, the Tribunal did not accept that the appellant would have any other involvement or association with Shia religious events or activities.

13    Having considered advice from DFAT and country information, the Tribunal noted, at [116], that despite the decrease in the attacks on Shias in Pakistan since a peak period in 2010 and 2013, there have nevertheless continued to be large-scale targeted attacks against the Shia community in and around Peshawar in 2014 and 2015.

14    At [117], the Tribunal said that having accepted that the appellant would attend the mosque and would participate in public events such as the Ashura parade and other Muharram processions, the Tribunal was unable to dismiss as remote the chance that the appellant would be subjected to serious harm if he returned to his home area in Peshawar and practised his religion in accordance with his beliefs as a Shia Muslim. For those reasons, the Tribunal found that there was a small but nonetheless real chance the appellant would suffer serious harm by the Taliban or other Sunni extremists for reasons of his religious beliefs, identity and practice as a Shia Muslim.

15    The Tribunal then went on to consider state protection and accepted, at [119], that the state of Pakistan could not meet the level of protection which citizens were entitled to expect, as discussed in Minister for Immigration and Multicultural Affairs v Respondents S152/2003 [2004] HCA 18; 222 CLR 1.

16    At [120], the Tribunal found that the appellant’s fears of being persecuted in his home area of Peshawar in the reasonably foreseeable future were well-founded.

17    The Tribunal then considered the question of relocation and used Hyderabad as a possible place of relocation, that being Pakistan’s fifth largest city with a population of over 5 million people and one of the country’s main commercial hubs. It offered a greater range of employment and housing opportunities than most cities and towns.

18    The applicant claimed that he would be at risk of persecution from Sunni extremists throughout Pakistan because of his religious beliefs, identity and practice as a Shia Muslim. He claimed that Shias were targeted and subject to persecution in all parts of the country.

19    At [127], the Tribunal accepted the evidence provided by the appellant showing some attacks against Shias in Pakistan as a whole, but said that the evidence indicated, and DFAT reported, that there were relatively few major sectarian attacks in recent years. The Tribunal noted the reported incidents against Shias in Hyderabad but said that those attacks appeared to have been mostly directed at clerics and leaders of mosques or Imam Bargahs and Shias with a profile in the community. The Tribunal repeated its findings that it did not accept that the appellant had engaged in activities that would cause him to be attributed with a profile associated with being a leader of a Shia community or as a Shia activist, or as a person who had a particular role or activity with a Shia Mosque or an Imam Bargah or any Shia religious or political group.

20    At [128], the Tribunal said it was satisfied that the chance that the appellant would suffer serious harm for reasons of his religious beliefs, identity and practice as a Shia Muslim, as a result of generalised sectarian violence or a specific attack in Hyderabad or some other place in the Sindh or the Punjab was remote. The Tribunal did not accept that there was a real chance that the appellant would suffer serious harm as a result of Sunni-Shia sectarian violence if he returned to Pakistan now or in the reasonably foreseeable future or that he would be subjected to serious harm for reasons of his Shia faith, including by attending a mosque or a religious event from time to time, or any associated or related reason. There was not a real chance, or an appreciable risk, the Tribunal said at [129] that the appellant would suffer serious harm in Hyderabad or some other place in the Sindh or the Punjab, for reasons of his Shia religious beliefs, practices or identity in the reasonably foreseeable future.

21    At [130] the Tribunal considered but did not accept what it described as the appellant’s implied claim that he would be discriminated against in Hyderabad or some other place on the Sindh or Punjab because he is a Pashtun.

22    At [135] and following, the Tribunal addressed the question of whether relocation would be reasonable in the appellant’s particular circumstances.

23    At [139], the Tribunal did not accept that the appellant’s ethnicity as a Pashtun or his place or origin in the Khyber-Pakhtunkhwa would make it not reasonable for him to relocate to Hyderabad or some other city or town in the Sindh or the Punjab. The Tribunal considered the decision in Minister for Immigration and Border Protection v SZSCA [2014] HCA 45; 254 CLR 317 and said that it had taken into account that the appellant would not be able to return to his home area where his family was located; however, given all the factors it had set out, it did not consider that this would be unreasonable (or not reasonable) in his individual circumstances.

24    At [142], the Tribunal said that in the appellant’s particular circumstances it would be reasonable for the appellant to relocate to Hyderabad or some other city or town in the Sindh or Punjab if he returned to Pakistan. The particular circumstances the Tribunal referred to were that the appellant was a Pashtun Shia Muslim who can speak Urdu, Pashto, English and Hindi, who is highly educated and has a range of work experience, who has been able to adapt to life in foreign countries such as Australia and the United Kingdom and who comes from a relatively wealthy family who are supportive of him and his situation.

25    Turning to the question of complementary protection, at [147]-[151], the Tribunal found that there were no substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Pakistan, there was a real risk that he would suffer significant harm. The Tribunal noted the terms of s 36(2B)(a) of the Migration Act 1958 (Cth).

The application to the Federal Circuit Court of Australia

26    The application to the Federal Circuit Court of Australia for judicial review of the decision of the Tribunal was dated 24 May 2016. The grounds of the application were as follows (as written):

1.    The Tribunal erred by failing to comply with ss 424A and 424AA of the Act.

Particulars

a.    In his application and declaration of July 2014, the applicant said that his uncle was shot dead by the Taliban four days after he arrived in Australia, and that his family received death threats from the Taliban after his uncle’s funeral. At the hearing, he said his uncle was killed on 1 August or 2 August. The applicant has never provided decision record of the delegate of the Minister with his application for a review application with the Administrative Appeals Tribunal. In such a situation, the Tribunal has an obligation to put information which the Tribunal considers as inconsistent and consider it as a reason for affirming the decision of the Tribunal under s424 A and 424 AA of the Migration Act 1958. The Tribunal failed to put such information to the applicant under s424 A and 424 AA of the Act.

2.    The Tribunal failed to consider relevant consideration when assessing the applicant’s claim for a protection visa.

a.    The applicant mentioned that he is a well-educated Shia person and would be harmed due to his profile. The Tribunal in many instances agreed and accepted that the applicant is an intelligent and highly educated man [Para 109, 192]. The Tribunal also accepted that there is a real chance that High-profile professionals would suffer serious harm by the Taliban. [Para 113] However, the Tribunal failed to assess the applicant’s profile, IE-well-educated Shia person and therefore, failed to assess the applicant’s fear of harm on the basis as a well-educated Shia person. The Tribunal has accepted that well-educated Shia people face harm. By failing to consider and having over looked this claim while accepting that the highly educated people would face harm and accepting that the applicant is a highly educated man, the Tribunal failed to consider relevant consideration. The Tribunal’s reasons in affirming the decision is self-contradictory.

b.    The Tribunal failed to consider, assess and give proper weight to the photo evidence the applicant has provided in relation to his case regarding his Shia activities in Australia.

c.    The Tribunal failed to consider his scars due to his Shia religious practice which would easily identify and as a Shia activist.

d.    The Tribunal failed to consider the applicant’s claim as a member of family unit of an active Shia family.

e.    The Tribunal failed to consider the applicant’s claim that he would be perceived as a Christian Spy due to his studies or stay in a western country.

3.    The Tribunal failed to consider critical aspect or evidence of the applicant when assessing how the applicant would be identified not only as a Shia but as a Shia activist and therefore, internal relocation would not be an option in the applicant’s case. The applicant mentioned that due to the scars he has in his body, the Sunni extremists would identify him as a Shia activist and therefore, he would be identified as a Shia activist and will be harmed even if he relocate to other parts of Pakistan. The Tribunal failed to consider this aspect when assessing relocation option.

The decision of the Federal Circuit Court

27    In relation to ground 1, the primary judge accepted the Minister’s submissions that the information referred to in the particulars did not enliven any obligation under s 424A. His Honour accepted the submission that the information referred to would fall within the exclusion under s 424A(3)(ba).

28     In relation to ground 2, the primary judge said it was apparent that the Tribunal did consider the appellant’s claims in relation to having a wealthy Shia family and made adverse credibility findings which were open to it. The Tribunal also rejected the appellant’s assertion of his profile as a Shia activist. That finding was also open. There was no relevant consideration in relation to ground 2(a) that the Tribunal failed to consider.

29    In relation to ground 2(b), the primary judge said it was for the Tribunal to determine what weight to give to the material produced by the appellant. The Tribunal did consider the appellant’s claims in relation to his Shia activities in Australia. The finding in relation to that material was open to the Tribunal and could not be said to lack an evident and intelligible justification.

30    In relation to ground 2(c), the primary judge said the appellant did not raise any claim to fear harm on the basis that he had scars and that the scars would identify him as a Shia activist. The Tribunal was not required to consider a claim that was not presented before it and did not fairly arise on the material before it.

31    In relation to ground 2(d), the primary judge said it was apparent the Tribunal did take into account the appellant’s claims in relation to his family and made adverse findings that were open to it.

32    In relation to ground 2(e), the primary judge said no claim was advanced by the appellant before the Tribunal that he feared harm because he would be perceived to be a Christian spy due to undertaking studies in a western country. The Tribunal was not required to address a claim that did not arise on the material before it, and no such claim could be said to fairly arise on that material.

33    The primary judge said that ground 3 was in substance an impermissible challenge to the adverse findings of fact made by the Tribunal. It was apparent that the Tribunal did consider the appellant’s claims in relation to being a Shia activist and made adverse findings that were open to it.

34    The primary judge said that the Tribunal complied with its relevant statutory obligations in the conduct of the review. The findings in relation to relocation were open on the material before the Tribunal.

The appeal to this Court

35    The notice of appeal contained the following grounds (as written):

1.    The Hon. Federal Circuit Court Judge made legal error by not considering procedural failure on part of Administrative Appeals Tribunal (AAT) decision and made legal error.

2.    The Hon. Federal Circuit Court Judge made legal error in his judgement by not properly Appling s424 (a) and s. 424 (b) of the Migration Act - 1958 by the Administrative Appeals Tribunal.

3.    The Administrative Appeals Tribunal made legal error by not correctly assessing documentary evidence and oral submission provided by the Appellant and made legal and jurisdictional error.

4.    The Administrative Appeals Tribunal erred in its judgment that the not applying s36 (2) of the Migration Act - 1958. The Tribunal has not considered serious harm faced by the Appellant if he returns to Pakistan.

5.    The Administrative Appeals Tribunal made legal error in considering country information in its decision without providing source of information or authenticity of the information.

6.    The Administrative Appeals Tribunal made legal error under s 424(a) by nor giving opportunity to the Appellant to response to adverse country information.

7.    The Administrative Appeals Tribunal has not given enough consideration to the evidence provided about violence in Pakistan, state persecution, Ethnicity of Applicant and come to conclusion.

8.    The Hon. Federal Circuit Court Jude made legal and jurisdictional error not considering the s 424 (a) and (b) which not applied correctly by the Tribunal.

The appellant’s submissions

36    The appellant filed no written submissions. In oral submissions, the appellant made three points. First, he said that he is a highly educated Shia Muslim and such people were persecuted in Pakistan. Secondly, he said he had religious ritual marks on his back and the Taliban could recognise him and harm him. Thirdly, he said that he provided evidence to the Tribunal and everything he said could be verified from the Internet, including pictures, as to being active in the TNFJ.

The Minister’s submissions

37    In answer to the appellant’s oral submissions, the Minister first noted that no transcript was before the Court and the best record of what was said in the Tribunal was what the Tribunal recorded in its reasons. The Minister also noted that the appellant was accompanied at the Tribunal hearing by his migration agent from Parish Patience Lawyers: see [16] of the Tribunal’s decision.

38    In answer to the appellant’s first point, that he is a highly educated Shia Muslim and persecuted for that reason in Pakistan, the Minister submitted that this ground was not put to the Tribunal. The Tribunal summarised, at [9] of its reasons, the grounds that were put to it and those grounds corresponded to the grounds at pages 1 and 2 of the appellant’s then solicitors’ 98 page submission to the Tribunal. The Minister submitted that this new claim was neither made explicitly to the Tribunal nor did it fairly arise from the material before the Tribunal. The statements about the appellant being highly educated arose in the context of relocation, were considered in that context by the Tribunal and findings made at [108]-[109].

39    In answer to the appellant’s second point, the Minister submitted that the topic of Shias’ religious ritual marks was referred to by the Tribunal at [42] of its reasons, but this was not a feature of the appellant’s claims or a claim in itself. The primary judge noted, at [25], that the appellant did not raise any claim to fear harm on the basis that he had scars and that the scars would identify him as a Shia activist. The claim that the appellant was an activist was considered by the Tribunal at [110] and following and not accepted. The claim that the appellant was a Shia Muslim was accepted by the Tribunal, but the Tribunal found that not all Shia Muslims in Pakistan were at risk of harm throughout Pakistan.

40    In answer to the appellant’s third point, that what he said to the Tribunal could be verified from the Internet, the Minister submitted that the appellant’s then migration agent provided to the Tribunal links to articles and other information, which the Tribunal considered at [101] for example, but did not provide pictures or information showing that the appellant or his family was active in the TNFJ. It did not appear that the Tribunal was asked to consider other material, for example on the Internet, and the Tribunal had no duty in the circumstances to make such an enquiry.

41    The Minister submitted that each of the pleaded grounds should fail. Further, to the extent that the grounds raised new allegations that were not raised before the primary judge, the Minister observed that an appellant requires the Court’s leave to rely on grounds that were not relied on in the proceeding before the primary judge. Leave should only be granted where it is expedient in the interests of justice to do so. The Court may grant leave if some point that was not taken below, but which clearly has merit, was advanced, and there was no real prejudice to the respondent in permitting it to be agitated. Where, however, there was no adequate explanation for the failure to take the point, and it seemed to be of doubtful merit, leave should generally be refused. The questions to be answered were whether there would be prejudice to the respondent, whether the appellant had advanced an adequate explanation for the failure to raise the ground(s) before the primary judge, and whether the ground(s) clearly had merit: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 at [46]-[48] per Kiefel, Weinberg and Stone JJ); MZYPO v Minister for Immigration and Citizenship [2013] FCAFC 1 at [101] per Lander, Jessup and Middleton JJ. Whilst the Minister acknowledged that he would suffer no prejudice, the Minister nevertheless submitted that leave should be refused for those grounds of appeal which were not raised before the Court below. There was neither a satisfactory explanation for the failure of the appellant to raise such grounds previously nor was there any merit in such grounds.

42    The Minister submitted that the first ground made a broad and unparticularised assertion that the primary judge failed to consider a “procedural failure” on the part of the Tribunal. It was not clear from this ground what was the “procedural failure” the appellant contended the primary judge did not consider. It may be that this ground was intended to introduce the complaints made in the subsequent grounds. However, the Minister submitted that, by itself, it was incapable of revealing any appellable error on the part of the primary judge or any jurisdictional error on the part of the Tribunal.

43    The second ground alleged that the primary judge erred by not properly applying “s 424(a) and s 424(b)” of the Migration Act. The Minister presumed that this ground sought to allege that the primary judge erred in his consideration of ground 1 of the application before the court below – which pleaded a failure to comply with s 424A of the Act. That was because s 424 was inapposite to the present circumstances (as it contained the Tribunal’s permissive power to seek information) and further there were no paragraphs 424(a) or 424(b) in that section.

44    The Minister submitted that there was no error in the primary judge’s finding that s 424A was not enlivened. That was because the information given in July 2014 was information “that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department” (see s 424A(3)(ba) of the Migration Act) and as such was excluded from the scope of the obligation in s 424A(1) by that paragraph. This was so regardless of the appellant not having provided a copy of the delegate’s decision record to the Tribunal: cf. Minister for Immigration and Citizenship v Chamnam You [2008] FCA 241 per Sundberg J; SZEEU v Minister for Immigration and Multicultural Affairs [2006] FCAFC 2; 150 FCR 214; at [91] per Moore J. That was because the putative information was provided in documents submitted by the appellant to the Department and orally to the Tribunal, and not provided orally to the Department (to which the exception in s 424A(3)(ba) of the Migration Act does not apply).

45    Further, and in any event, the Tribunal was under no obligation to put to the appellant, pursuant to ss 424A or 424AA of the Migration Act, any inconsistency between the information provided by the appellant in his application and the evidence given at the Tribunal hearing because the putative information was not information to which the obligation in s 424A(1) of the Act applied, as it was not information that would constitute “in [its] terms a rejection, denial or undermining of the appellants’ claims to be persons to whom Australia owed protection obligations”: see SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; 235 ALR 609 at [17] per Gleeson CJ, and Gummow, Callinan, Heydon and Crennan JJ. The term “information” does not encompass “inconsistencies” and “contradictions” in an applicant’s evidence: see SZBYR at [18]; Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; 241 CLR 594; at [9] per French CJ and Kiefel J.

46    The third ground alleged that the Tribunal erred by not correctly assessing the appellant’s documentary evidence and oral submissions. The appellant had not particularised what evidence or submissions the Tribunal failed to consider. The Minister submitted that the Tribunal considered all of the claims and evidence that were made to the Tribunal and apportioned such weight to the evidence as it saw fit, for the reasons it gave and based on the material before it, as the primary judge correctly found.

47    The fourth ground alleged that the Tribunal erred in not applying s 36(2) of the Migration Act, and not considering serious harm faced by the appellant. The Minister submitted that this ground could not succeed, as the Tribunal clearly assessed the appellant under both criteria arising under s 36(2) – that is, the refugee criterion set out in s 36(2)(a), and the complementary protection criterion set out in s 36(2)(aa).

48    The fifth ground alleged that the Tribunal erred by considering country information without providing the source of that information or its authenticity. Contrary to this submission, the Tribunal’s decision record plainly indicated that the Tribunal provided clear citations for the country information upon which it relied. Further, the Tribunal was not required to authenticate that country information. The Tribunal’s preference for country information was a matter for it: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 per Gray, Tamberlin and Lander JJ.

49    The sixth ground alleged that the Tribunal erred in complying with its obligations under “s 424(a)” by not giving the appellant an opportunity to respond to adverse country information. Again, the Minister assumed this complaint to allege a breach of s 424A. However, it was well established that country information was exempt from obligations under s 424A(1) of the Migration Act, by operation of s 424A(3)(a); that is it is “not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member”: see, eg, SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46; 174 FCR 415; at [82]–[83] per Tracey and Foster JJ.

50    The seventh ground alleged that the Tribunal did not give “enough consideration” to certain aspects of the appellant’s evidence. However, the Tribunal clearly considered, at [101], the evidence submitted by the appellant, but did not accept that the material provided independent corroboration of any aspect of the appellant’s claims:. Questions of weight to be assigned to evidence were, where there was an intelligible basis for such a finding, a matter for the Tribunal to decide in the proper exercise of its discretion: cf. eg, Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24. It was open to the Tribunal to reason as it did in the circumstances, and there was no error on the basis of the Tribunal failing to give “enough consideration” to the appellant’s evidence.

51    The eighth ground appeared to repeat the allegation in the second ground, without any further development. The Minister submitted it should fail for the same reason.

Consideration

52    It is not clear to me which of the grounds in the notice of appeal the Minister submitted had not been put before the primary judge. In the course of the hearing of the appeal, it was accepted on behalf of the Minister that what the appellant had put in oral submissions on the appeal had been put to the primary judge, although that did not mean that all of them had been put to the Tribunal.

53    I do not accept the appellant’s oral submissions.

54    As to the first submission, this claim was not put to the Tribunal. It did not fairly arise from the material. There was no jurisdictional error on the part of the Tribunal in not accepting that the appellant would be persecuted in or throughout Pakistan as a highly educated Shia Muslim.

55    As to the second submission, concerning religious ritual marks on the appellant’s back, this was not a separate claim put to the Tribunal but was at best an element of the appellant’s claim that he would be persecuted as an activist Shia. The Tribunal considered and rejected that claim at [110] and following of its reasons. In my opinion, the primary judge was correct to say that the appellant did not raise any claim to fear harm on the basis that he had scars and that the scars would identify him as a Shia activist: see ground 2 particular c. in the application for judicial review to the Federal Circuit Court.

56    As to the third submission, no jurisdictional error is established in relation to what the appellant said were pictures from the Internet which would verify that he and his family were active in the TNFJ. The Tribunal considered the material that was provided by the appellant’s migration agent and no basis was identified for finding that the Tribunal was asked to consider other material. There was no duty on the part of the Tribunal in the circumstances to make such an enquiry.

57    As to ground 1, that there were procedural errors on the part of the Tribunal which the primary judge did not consider, I shall assume that this general ground picks up later contentions. Otherwise, it is in terms which are too general to have present meaning.

58    As to ground 2, which I construe as meaning that the primary judge erred by not finding that s 424A(1)(a) and (b) were not complied with by the Tribunal, I see no basis for that claim. I reject the submission, if put, that because the appellant did not provide the decision record of the delegate of the Minister with his application for a review application with the Tribunal, the Tribunal had an obligation for that reason to put to the appellant information under s 424A which the Tribunal considered as inconsistent and “would be the reason, or a part of the reason, for affirming the decision that is under review”. In my opinion, the decision of the delegate was not, of itself, “information” within the meaning of s 424A, although it may contain information given to the delegate by the appellant. It is not suggested that the appellant did not have a copy of the decision record of the delegate.

59    I turn to ground 3: that the Tribunal made legal error by not correctly assessing documentary evidence and oral submission provided by the appellant, and made legal and jurisdictional error. I see no basis for the contention that the Tribunal made a jurisdictional error in assessing the documentary evidence or oral submissions. The Tribunal considered the material and claims which were before it and evaluated the material and claims, as was its statutory task. I reject ground 3.

60    I turn to ground 4: that the Tribunal erred in its judgment in not applying s 36(2) of the Migration Act in that the Tribunal had not considered serious harm faced by the appellant if he returned to Pakistan. In my opinion, this ground is unsustainable. The Tribunal spent many paragraphs of its reasons considering the claims of serious harm. As the Minister submitted, clearly the Tribunal assessed the appellant under both criteria arising under s 36(2): that is, the refugee criterion set out in s 36(2)(a), and the complementary protection criterion set out in s 36(2)(aa). I reject ground 4.

61    Ground 5 is that the Tribunal made a legal error in considering country information in its decision without providing the source of information or authenticity of the information. In my opinion, the reasons of the Tribunal show that it clearly specified the country information upon which it relied. As a matter of its jurisdiction, the Tribunal was not required to authenticate that country information. The accuracy of that information is for the Tribunal to evaluate: see NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11] per Gray, Tamberlin and Lander JJ, as follows:

By s 424(1), in conducting a review, the Tribunal may get any information that it considers relevant. There can be no objection in principle to the Tribunal relying on “country information”. The weight that it gives to such information is a matter for the Tribunal itself, as part of its fact-finding function. Such information as the Tribunal obtains for itself is not restricted to “guidance”, as the appellants submitted. It may be used to assess the credibility of a claim of a well-founded fear of persecution. It is not, as the first appellant submitted, an error of law, or a jurisdictional error, for the Tribunal to base a decision on “country information” that is not true. The question of the accuracy of the ‘country information’ is one for the Tribunal, not for the Court. If the Court were to make its own assessment of the truth of “country information”, it would be engaging in merits review. The Court does not have power to do that.

I reject ground 5.

62    As to ground 6, that the Tribunal made legal error under s 424(a) by not giving an opportunity to the appellant to respond to adverse country information, I shall read this ground as referring to s 424A. The short answer to this ground is that s 424A(1) does not apply because of s 424A(3)(a): it is information “that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member”. I refer to the decision of the Full Court in SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46; 174 FCR 415 at [82]–[83] per Tracey and Foster JJ. I reject ground 6.

63    As to ground 7, that the Tribunal did not give enough consideration to the evidence provided about violence in Pakistan, state persecution, the ethnicity of the appellant and come to a conclusion, this ground does not allege jurisdictional error. If it is interpreted as so doing, I accept the submission on behalf the Minister that in the circumstances of this case it was open to the Tribunal to reason as it did, there was an intelligible basis for its findings and there was no error on the basis of the Tribunal failing to give “enough consideration” to the appellant’s evidence. I reject ground 7.

64    As to ground 8, that primary judge made legal and jurisdictional error in “not considering the s 424 (a) and (b) which not applied correctly by the Tribunal”, in my opinion this ground is merely repetitive and takes the appeal no further. I reject ground 8.

Conclusion and orders

65    For these reasons, the appeal is dismissed. The appellant is to pay the first respondent’s costs, as agreed or assessed.

Associate:

Dated:    24 February 2017