FEDERAL COURT OF AUSTRALIA

AUP15 v Minister for Immigration and Border Protection [2017] FCA 192

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    Unless a party notifies the Court in writing by 4:00pm on 6 March 2017 that it opposes this order as to costs, the appellant pay the first respondent’s costs of the appeal, as agreed or taxed.

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

REASONS FOR JUDGMENT

KENNY J:

1    This is an appeal from a judgment of the Federal Circuit Court of Australia (FCCA), dismissing an application for judicial review of a decision of the Refugee Review Tribunal, now the Administrative Appeals Tribunal (the Tribunal), to affirm the decision of a delegate of the respondent Minister not to grant the appellant a protection (class XA) visa (protection visa). The judgment of the primary judge has the citation AUP15 v Minister for Immigration & Anor [2016] FCCA 2943 (AUP15).

2    The appellant was self-represented in this Court, as he had been in the FCCA. The Minister was represented by his lawyer in this Court as at first instance.

3    The applicant in the FCCA and the Tribunal (referred to in this Court and generally in these reasons as the appellant) claimed to be a person in respect of whom Australia has protection obligations under the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol (the Convention) and to satisfy the criterion in s 36(2)(a) of the Migration Act 1958 (Cth) (the Migration Act) (as it was at the relevant time) or, alternatively, the complementary protection criterion in s 36(2)(aa). The appellant claimed that, if he returned to Pakistan in the reasonably foreseeable future, he would face a real chance of serious or significant harm from extremists in Pakistan because he had sought to open a co-educational English language school and because he has an association with the Awami National Party (ANP). He claimed that if returned to Pakistan he would be compelled to open another English language school and that he would be harmed because of his political opinion in favour of English language education and co-education.

4    For the following reasons I would dismiss the appeal.

summary of Background facts

5    The background facts are not in dispute. The following summary is drawn primarily from the Tribunal’s statement of reasons.

6    The appellant is a citizen of Pakistan, from the province of Punjab.

7    The appellant first entered Australia in 2010, holding an Australian student visa and has since completed a Diploma of Business Management in Australia. He has twice returned to Pakistan, for around three weeks in 2011 and a little over a fortnight in 2012.

8    The appellant applied for a protection visa in December 2012, which was accompanied by a statement in which he set out his claims in support of his application. His application was refused by a delegate of the Minister in September 2013.

9    On 23 September 2013, the appellant applied to the Tribunal for review of the delegate’s decision. The appellant attended a hearing before the Tribunal in June 2014, assisted by an interpreter and his representative. A number of documents were supplied to the Tribunal by him or on his behalf. On 30 April 2015, the Tribunal affirmed the decision under review.

the tribunal decision

10    The Tribunal accepted that the appellant came from a district of Pakistan close to the Khyber Pahktunkhwa (KPK) border; that he was a Hindko speaker with Pashtun antecedents; and that, accordingly, the appellant and his father may have been supporters of the ANP. The Tribunal also accepted that the appellant’s father, who was no longer living in Pakistan, had returned to Pakistan in 2011-2012, and that he may have liaised with the locals and the ANP in relation to the funding of a school for girls in 2012. The Tribunal did not, however, accept that the appellant’s father was a senior advisor to the ANP “as this title suggest[ed] a more senior and extensive role with the ANP than [his] father appear[ed] to have fulfilled”. The Tribunal also “noted” that the appellant left Pakistan in 2010 “so has had limited involvement with the ANP since then” and that the appellant and his father had not suffered any harm because of their ANP involvement prior to the claimed threats in 2012. The Tribunal observed that this was consistent with country information that indicated that “militants have primarily targeted high profile ANP leaders and officials in the KPK”.

11    In support of the appellant’s claim that, at his father’s instigation, the appellant planned to open an English Language institute to teach English to people wanting to obtain visas to study overseas, the appellant provided a number of documents, including a copy of an advertising sticker, a copy of a newspaper containing an advertisement for the institute, and a business card bearing the words “member of ANP”. The Tribunal found that, “[i]n the absence of any other materials indicating that the [appellant] had genuinely planned to open an English language institute”, “the advertising stickers ... were produced to create a protection claim and ... the advertisement was placed in the newspaper to create a protection claim”. The Tribunal made a similar finding about the business card, on the basis that there was “no reason” why the appellant would include “member of the ANP” on a business card in a district “where the ANP had little or no presence or influence other than to generate a protection claim”. This also led the Tribunal to reject the appellant’s claim that the ANP had provided computers and furniture for the proposed institute.

12    In relation to the copy of the sticker for the institute, the Tribunal also observed that the appellant provided “no receipts or other evidence that he produced a large number of the sticker advertisements and distributed them throughout the district as claimed and the Tribunal does not accept that he did distribute any”.

13    As to the newspaper containing the advertisement, the Tribunal doubted that it was a “genuine document as the advertisement appears to be obscuring the items above it and is out of alignment with the other items on the page”. It accepted, however, that the appellant “may have placed an advertisement” as claimed. Nonetheless, after referring to the newspaper’s Facebook site and noting its distribution was apparently confined to two major cities, the Tribunal observed that, even if it was distributed in the appellant’s district, “it appears to the Tribunal that the [appellant] advertised in English for people who wanted to learn English in a district where, according to the [appellant], most people are unable to read or speak English, in a newspaper which was not local to his home district, thereby restricting the likelihood that the advertisement would be seen or understood in his home district”.

14    Notwithstanding this observation, the Tribunal considered the appellant’s claim that he had been threatened or warned some days after the advertisement was placed in the newspaper. In this regard the Tribunal accepted that schools in Pakistan, primarily schools for girls, had been attacked “in the militant dominated tribal areas of KPK and the FATA and recently, in December 2014, [there had been] a large scale attack on an Army school in Peshawar”. It accepted that there was a militant presence in the appellant’s district, although it noted that these militant attacks had been “predominantly directed towards military, government or international security targets, not individuals”. The Tribunal did not, however, accept the appellant’s evidence that he and his father were threatened or that people had been to their home looking for him and his father, because, so the Tribunal held, the appellant “contrived the evidence regarding the establishment of a co-educational English language institute”. The Tribunal further stated that it placed no weight on a copy of a police First Information Report that the appellant had given to it. The Tribunal continued that:

In making this finding the Tribunal has had regard to the country information [noted] above and also notes that English is one of the official languages of Pakistan and is reportedly the language of instruction 50% of the time in schools in Punjab; that the [appellant’s] father was an English teacher in a government school in [the district] and did not suffer any harm because of his occupation; that there are other English language schools operating in [the district] ... indicating that the [appellant] was not breaking new ground with his institute; that most universities in Pakistan are co-educational; that [the appellant] and his father were active ANP supporters in [the district] without attracting any harm, despite the apparent presence of militants including the TTP; that the ANP fielded a candidate in [the district] in 2013 and the evidence before the Tribunal does not indicate that ANP supporters or campaigners ... were targeted; and that [the appellant’s] father liaised with and advised the ANP and the local community regarding the expansion of a girls’ school in 2012 without attracting any threats or harm.

15    The Tribunal’s reasons indicated that it raised a number of concerns with the appellant about his claims at the Tribunal hearing. The Tribunal questioned, in particular, the lack of evidence about planning for the opening of the appellant’s institute. It found that the appellant did not genuinely intend to open such a school, and that his claims in relation to the school were contrived.

16    The Tribunal further found that, even if the appellant had been threatened as he claimed, it did not accept that there was a real chance he would suffer serious harm in the district now or in the reasonably foreseeable future. The appellant did not, the Tribunal noted, open a co-educational English language institute. Further, the Tribunal did not accept that the appellant would do so if he returned to his home district “as the Tribunal does not accept that he genuinely intended to open an institute in 2012 or that he is compelled to help people by teaching them English in a co-educational environment”. The Tribunal did not accept that the appellant would be targeted as an ANP supporter, “absent the co-educational English institute”. The Tribunal noted that the appellant and his father had been active ANP supporters without being harmed or threatened with harm before advertising the institute; that the evidence did not indicate that supporters of the ANP had been targeted in the district; and that the appellant had been absent from the district for about three years since he put the advertisement in the newspaper.

17    The Tribunal made a separate and independent finding that it was satisfied that the appellant could safely and reasonably relocate to another part of Pakistan. It noted the appellant’s claim that he could not do so because the militants have strong communication networks; he was an ANP supporter; and because his support of co-education and English language education is anti-Islamic. The Tribunal accepted that militant groups in Pakistan are aligned and can share information but did not accept that the appellant had a profile that would lead him to be targeted outside his local area. The Tribunal also did not accept that he faced a real chance of serious harm from militants in Punjab as a member or supporter of the ANP. Further, it did not accept that, even if the appellant sought to open a co-educational English language institute, he would be targeted by militants, because (so it noted) English is an official language of Pakistan; schools in Punjab give instruction in English; most universities are co-educational; and Western influence is pervasive, particularly in the large cities.

18    The Tribunal also found that it would be reasonable for the appellant to relocate to another city in Punjab, such as Lahore, noting that there were a number of areas in Pakistan that remained relatively free of militant, sectarian or politically-motivated violence. It was satisfied that the appellant “could obtain employment and accommodation and establish himself in one of the large cities in Punjab such as Lahore”. The Tribunal also noted the contents of the psychological report concerning the appellant, as well as a letter from his general medical practitioner. The Tribunal accepted that the appellant suffered from anxiety and depression and was satisfied that he would be able to access treatment for these conditions in large cities in Punjab, such as Lahore.

19    The Tribunal concluded that the appellant did not have a well-founded fear of persecution in Pakistan on a Convention ground because he sought to open a co-educational English language school or because he was an ANP supporter. The Tribunal further concluded that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia and returned to Pakistan, the appellant would suffer significant harm on return to Pakistan on the basis of his involvement with the ANP, an English language institute or his support for co-education.

20    The Tribunal found that the appellant did not satisfy the criteria in s 36(2)(a) or s 36(2)(aa) of the Migration Act, and accordingly affirmed the delegate’s decision not to grant the appellant a visa.

The Decision of the FCCA

21    The appellant applied to the FCCA for judicial review of the Tribunal’s decision, on ten grounds.

22    Grounds 1 and 10 contested the Tribunal’s findings on relocation, asserting in substance that the Tribunal had misunderstood and misapplied the law with respect to relocation. The primary judge rejected this proposition, holding that the Tribunal’s approach to relocation accorded with that endorsed in SZATV v Minister for Immigration and Citizenship [2007] HCA 40; 233 CLR 18: AUP15, [44], [47]. The learned primary judge held that any error in relation to the Tribunal’s consideration of whether the appellant could relocate within Pakistan did not affect the decision that was ultimately made by the Tribunal and that, in any event, the Tribunal made no error of law.

23    Ground 2 claimed that the Tribunal erred in considering whether the appellant faced a real chance of serious harm or a real risk of significant harm if returned to Pakistan. The primary judge held, however, that the appellant had not identified a claimed error of law and that the Tribunal did not make any error of law. The primary judge stated (AUP15, [50]):

[The Tribunal] accurately set out the law it was required to apply in its Decision Record. It correctly stated the criteria in section 36(2)(a) and 36(2)(a)(a) of the Act. The Tribunal took into account relevant material, did not take into account irrelevant material, considered each of the claims made by the [appellant] and made findings about the [appellant’s] evidence open to it on the evidence before it and on its consideration of relevant country information. All a matter for the Tribunal.

24    The appellant alleged in ground 3 that he was not afforded procedural fairness with regard to the country information considered by the Tribunal. In this regard, the primary judge held (AUP15, [55]) that:

To the extent the Tribunal relied on country information, it was not required to give the [appellant] an opportunity to comment on that information because it was information that fell within section 424A(3)(a) or (b).

25    The primary judge also accepted that the Tribunal’s thought processes, preliminary views and adverse conclusions about evidence that the appellant had provided did not constitute “information” for the purposes of s 424A, citing SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; 235 ALR 609 at 616.

26    Ground 4 asserted that the Tribunal had not given proper weight to the psychologist’s report. Ground 6 asserted that the Tribunal “did not understand ... my being the member of ANP”. Ground 7 claimed that the Tribunal “did not consider my budget whether or not I would be able to stay in Lahore without being supported”. This ground continued:

There is no government free fund to support the masses in Pakistan. I would be admitted in the hospital in Pakistan, but for how long? Will I not come to the public to earn? I will definitely be chased.

27    Ground 8 stated that “[t]he member did not consider properly if being in the mental hospital in Hyderabad or Lahore without any friend or family member” and ground 9 asserted “[t]he member did not consider Taliban and their network that how they work and chase their target”.

28    The primary judge rejected each of the grounds for the same reasons, holding that they sought “to engage [the Court] in impermissible merits review”: AUP15, [57]-[58]. The primary judge noted that the findings made by the Tribunal in respect of each of the factual matters raised by the appellant were open to the Tribunal on the material before it and that the weight to be given to any particular item of evidence was a matter for the Tribunal, citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at 272 and NADR v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 167 at [9].

29    Ground 5 claimed that the Tribunal failed to consider the relevant information that the appellant provided to the Tribunal. The primary judge held, however, that the Tribunal considered “each and every of the claims” made by the appellant and made findings about them. The primary judge also noted that the appellant did not identify any particular information that he alleged the Tribunal failed to consider: see AUP15, [59].

30    The primary judge also addressed the appellant’s allegation that the Tribunal was biased, an allegation made in his written submissions filed in the FCCA on 23 September 2016. The primary judge held that this allegation was not made out because there was nothing in the decision record of the Tribunal to indicate that the Tribunal had not brought an impartial mind to the decision before it. The primary judge added that “[t]his is a serious allegation and should not have been made. The [appellant] simply disagrees with the factual findings of the Tribunal”: AUP15, [60].

31    Accordingly, the primary judge dismissed the appellant’s judicial review application, with costs.

Grounds of appeal and the parties’ submissions

32    The appellant appealed from this judgment. Under the heading “Grounds of appeal”, the appellant’s notice of appeal stated:

2.    Procedural unfairness

3.    Not proper consideration of relevant information and my basic claims.

33    The appellant also filed written submissions in support of his appeal, which requested this Court to have regard to the grounds set out in his judicial review application in the FCCA and the written submissions filed in that Court. Both these documents were attached to the written submissions filed by him in this appeal. Also in his submissions in this appeal, the appellant asked this Court to consider the written submissions made to the Tribunal on his behalf by his migration agent. These submissions were dated 18 August 2014. I have read these submissions but, as appears below, it is unnecessary to discuss them further.

34    In his submissions filed in this appeal, the appellant further stated that:

... all the allegations that have been put on my application are on the bases of doubts. I feel that the RRT member was bias and had not brought fresh mind to the decision and FCCA failed to consider all those things what I consider are unfair. It is stated ... that sometimes it is not necessary that legal error may occur so for my case is concern I find it a bias decision.

35    The respondent Minister did not oppose leave being granted to the appellant to rely in his appeal on the ten grounds of his judicial review application in the FCCA. The Court granted the appellant leave to allow him to contest the primary judge’s rejection of each of these grounds. The substance of these grounds is sufficiently set out in the discussion of the judgment of the FCCA, set out above.

36    As to the submissions filed in the FCCA, apart from the issue of bias to which the primary judge expressly referred, it may be noted that, in these submissions, the appellant challenged the Tribunal’s findings or statements about the evidence, including: (1) the Tribunal’s query about “why [he] would have been an ANP supporter”; (2) the Tribunal’s failure to accept that the appellant’s father was a senior adviser to the ANP; (3) the Tribunal’s finding that the appellant had had limited involvement with the ANP since 2010; (4) the Tribunal’s statement that the appellant did not provide any receipts for the advertising stickers for his institute; (5) the Tribunal’s statement that the advertisement promoting the institute appeared to be designed to attract the attention of extremists; (6) the Tribunal’s statement that it had located advertisements for several English language schools in the appellant’s district; (7) the Tribunal’s claimed statement that the appellant did not pay any rent for the property leased for the institute and broke the lease; (8) the Tribunal’s failure to accept his claim that he was planning to open an English language institute; (9) the finding that the advertisement stickers and the newspaper advertisement were provided or produced for protection claims; and (10) the Tribunal’s finding that the purpose of including “member of ANP” on the appellant’s business card was for a protection claim. Further, the appellant submitted that the Tribunal did not properly consider his psychologist reports, and challenged the conclusion that he could relocate to Punjab. The appellant also submitted that the Tribunal reached an illogical conclusion about his mental health, and took irrelevant information into consideration. Lastly, the appellant challenged the Tribunal’s conclusion that he could relocate to Rawalpindi or Lahore, on the basis that in Pakistan he would not be able to find a job as he would be depressed and afraid.

37    At the hearing of this appeal, the appellant re-iterated some of the submissions that were made in the written submissions filed in the FCCA. He also submitted that the Tribunal’s decision was a “bad decision” because his basic claims were not accepted. Rather, the decision was made “on the basis of doubt”. The appellant further submitted that the decision of the Tribunal was “not fair and just” and reiterated his disagreement with the Tribunal’s findings about his father’s role in the ANP and his ability to find work in Pakistan with no family support. He also reiterated his claim that the Tribunal did not consider his psychologist’s report and his fears for his safety, even if he were to return to a different part of Punjab.

38    Ultimately, it seemed to me that there were two aspects to the appellant’s complaint. The first was his complaint that the Tribunal did not accept his fundamental claim, notwithstanding that, from the appellant’s perspective, he had done all he could to substantiate his claim by providing documentary and other evidence to the Tribunal. The second aspect was his complaint that he could not reasonably relocate in Punjab, having regard to various matters including his health and inability to find a job – a difficulty exacerbated by his lack of family in Punjab. As explained below, neither complaint gave rise to jurisdictional error on the Tribunal’s part or appellable error on the part of the primary judge.

39    The Minister filed written submissions in defence of the judgment of the primary judge and the decision of the Tribunal. At the hearing of the appeal, the Minister submitted that it was clear that the appellant sought to challenge the merits of the Tribunal decision, which was impermissible on judicial review. The Minister emphasised that any complaint that the appellant had in respect of the Tribunal’s consideration of the issue of relocation would not matter as it did not affect the decision made by the Tribunal. The Minister noted that the appellant did not give any particulars regarding his allegation that there was a breach of procedural fairness. The Minister further noted that there was no evidence to support the appellant’s allegation that the Tribunal was biased against him and otherwise the Minister relied on his submissions in the FCCA and in this Court.

CONSIDERATION

40    The jurisdiction of the FCCA at first instance, and of this Court on appeal, is controlled by statute: see ss 476 and 476A the Migration Act, read with s 474 of that Act, s 24 of the Federal Court of Australia Act 1976 (Cth), and s 10 of the Federal Circuit Court of Australia Act 1999 (Cth). In the context of the present appeal, the jurisdiction conferred on the FCCA was relevantly exercised when that Court undertook the consideration of whether or not the Tribunal’s decision was affected by jurisdictional error, as explained by the authorities: see, for instance, Plaintiff S157/202 v Commonwealth [2003] HCA 2; 211 CLR 476 at [76] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ). The question for this Court on appeal is whether or not the FCCA is shown to have erred in the conclusion it reached in this regard: for example, SLMB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 129 at [11] (Branson, Finn and Finkelstein JJ).

41    A number of the grounds (application grounds 4, 6, 7, 8 and 9) on which the appellant relied in the FCCA challenged the Tribunal’s evaluation of the evidence or factual findings. The Tribunal expressly considered the appellant’s psychologist’s report (application ground 4) and whether the appellant would be able to find employment and support himself in one of the large cities in Punjab, such as Lahore (application ground 7). The Tribunal expressly considered the appellant’s claim that he was a member of the ANP and accepted that he and his father may have been ANP supporters (application ground 6). The Tribunal also considered the availability of mental health services and was apparently satisfied that the appellant would be able to access appropriate treatment in one of the large cities in Punjab such as Lahore (application ground 8). It also considered whether the appellant would be targeted by militants and found that he would not be so pursued (ground 9). The findings made by the Tribunal at each relevant point in its statement of reasons were open to it to make on the basis of the evidence and other material before it. No jurisdictional error has been identified with respect to these findings and I can discern none.

42    I observe at this point that the same is also true of the appellant’s challenges, in his submissions in the FCCA, to the Tribunal’s findings or statements about the evidence provided by the appellant: see [36] above.

43    The other grounds relied on by the appellant in support of his judicial review application in the FCCA also failed to justify a finding of jurisdictional error on the Tribunal’s part.

44    In relation to the proposition that the Tribunal erred in considering whether he faced a real chance of serious harm, or a real risk of significant harm if returned to Pakistan (application ground 2), the Tribunal correctly stated the law that it was required to apply, referring to the criteria in s 36(2)(a) and (aa) of the Migration Act. The Tribunal considered whether the appellant’s claims satisfied those criteria, having regard to its findings, including its findings about the evidence and the relevant country information. The Tribunal concluded that the appellant did not meet these criteria. In so doing, the Tribunal addressed the correct statutory questions; and it was open to the Tribunal to so conclude. As the following discussion indicates there is no basis for attributing any other jurisdictional error in this context.

45    There is also no basis shown for the allegation that the appellant was not afforded procedural fairness in relation to the country information that the Tribunal considered (application ground 3). At the time of the Tribunal’s decision, as the primary judge observed, s 422B of the Migration Act provided that Div 4 of Pt 7 of that Act “is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with”. Pursuant to s 424A(1) of the Migration Act, which is in Div 4 of Pt 7, the Tribunal was required to give the applicant an opportunity to comment on information that it considered “would be the reason, or part of the reason, for affirming the decision that is under review”. This obligation was, however, limited by s 424A(3). Section 424A(3) provided that the obligation in s 424A did not apply to 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; or that the applicant gave for the purpose of the application for review”. The country information considered by the Tribunal in this case was information that fell within s 424A(3). The Tribunal was not therefore required to give the appellant an opportunity to comment on this information.

46    Grounds 1 and 10 contested the Tribunal’s findings on relocation, asserting in substance that the Tribunal had misunderstood and misapplied the law with respect to relocation. As I said in MZACX v Minister for Immigration and Border Protection [2016] FCA 1212 at [24]-[26] and [34]:

The requirement that a “fear” be “well-founded” in Art 1A(2) of the Convention “incorporates a consideration as to whether a claimant for refugee status can relocate within the country of his nationality so as to avoid persecution”: see MZYPW v Minister for Immigration and Citizenship [2012] FCAFC 99 at [8], citing SZATV v Minister for Immigration and Citizenship [2007] HCA 40; 233 CLR 18 at [19]-[22]. A person is not a refugee within the meaning of the Convention if he or she could obtain real protection in his or her country of nationality by relocating to another part of the country. The “factum upon which the principle of relocation operates is that there is an area in the visa applicant’s country of nationality where he or she may be safe from harm”: Minister for Immigration and Border Protection v SZSCA [2014] HCA 45; 254 CLR 317 at [25] (French CJ, Hayne, Kiefel and Keane JJ). Further, it “may be reasonable for the applicant for a protection visa to relocate in the country of nationality to a region where, objectively, there is no appreciable risk of the occurrence of the feared persecution”: SZFDV v Minister for Immigration and Citizenship [2007] HCA 41; 233 CLR 51 at [14] (Gummow, Hayne and Crennan JJ). This analysis is taken up by Australian law in s 36(2) of the Migration Act, set out above.

The issue of relocation does, however, raise the separate and distinct issue of reasonableness since “[w]hat 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”: SZATV 233 CLR 18 at [24]; see also SZFDV 233 CLR 51 at [14]; and SZSCA 254 CLR 317 at [25].

Clearly enough, whether relocation to a particular place is reasonable can raise different issues to those raised by the question whether a visa applicant faces a “fear of persecution”. Unlike fear of persecution, the reasonableness of relocation imports a question of practicability, the boundaries of which are different from fear of persecution for a Convention reason and in the Convention sense, even though the question of persecution in the Convention sense remains: see SZFDV 233 CLR 51 at [14]; SZATV 233 CLR 18 at [24] and Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; 52 FCR 437 at 443 (Black CJ, Whitlam J agreeing).

...

The nature of the inquiry as to the reasonableness of relocation depends on the particular objections raised by the visa applicant to relocation: SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46; 174 FCR 415 at [124], citing Randhawa 52 FCR 437 at 442-443. These objections set the parameters for the Tribunal’s inquiry: MZYXP v Minister for Immigration and Border Protection [2013] FCA 1352 at [61]. The Tribunal’s task is to assess the reasonableness of relocation as regards the applicant by reference to the issues raised by him and on the other material before the Tribunal: AZAEH v Minister for Immigration and Border Protection [2015] FCA 414 at [21]; and NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; 144 FCR 1 at [58], [60]-[61], [68].

47    I can discern no relevant error in the Tribunal’s discussion, findings and ultimate conclusion about relocation in the appellant’s case. The appellant focussed on the issue of the reasonableness of his relocation. It is plain enough, however, that the Tribunal assessed this matter by reference to the issues the appellant raised and the other material before it. The appellant’s complaint regarding this issue was in truth a complaint about the Tribunal’s factual findings and its ultimate conclusion. There was, however, no jurisdictional error shown in this regard.

48    In any event, as the primary judge noted, if there was any error in the Tribunal’s consideration of the relocation issue, that error could not affect the ultimate decision, because the Tribunal held that the appellant did not have a well-founded fear of persecution in Pakistan on a Convention ground (because he sought to open a co-educational English language school or because he was an ANP supporter) and that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia and returned to Pakistan, the appellant would suffer significant harm (on the basis of his involvement with the ANP, an English language institute or his support for co-education).

49    As we have seen, the grounds of appeal in the appellant’s notice of appeal were apparently intended to support the matters addressed in the FCCA. The appellant did not, in his submissions at the hearing of the appeal, identify any other basis for a finding of jurisdictional error on the Tribunal’s part or a finding of appellable error by the primary judge. The issue of procedural fairness has already been discussed with reference to country information. More generally, it appears that the issues arising in relation to the decision under review were raised with the appellant during the Tribunal hearing. Furthermore, it is evident from the Tribunal’s reasons that, as the primary judge held, it gave careful consideration to the appellant’s claims, as well as the evidence and other material he provided, and made findings about his claims having regard to the evidence and other material before it (application ground 5).

50    As I sought to explain at the hearing of the appeal, some of the matters (see [36] above) raised by the appellant were in fact resolved by the Tribunal in his favour. Other matters (see [36] above) related to the evidentiary and factual findings made by the Tribunal. As I also sought to explain at the hearing, the FCCA does not have the jurisdiction to scrutinise the evidence and other material on which an appellant’s claims for a protection visa rely to determine whether or not that Court is satisfied that the appellant has met the relevant criteria for a protection visa. This kind of examination, known to Australian lawyers as “merits review”, was the task of the Tribunal and cannot be replicated by either the FCCA or by this Court on appeal. The jurisdiction of the FCCA and this Court on appeal is limited in the way discussed earlier.

51    It seemed to me that the appellant in fact understood this difficulty, but he nonetheless submitted that the Tribunal’s decision was a “bad decision” because his basic claims were not accepted. This is in the end what I take him to mean when he said that the decision was made “on the basis of doubt”.

52    Having considered the Tribunal’s decision, the primary judge concluded, in effect, that it was open to the Tribunal to make the findings it did and, in so doing, to reject the appellant’s claims. I am unable to discern any relevant error in the primary judge’s conclusions. The essence of the appellant’s submissions on appeal seemed to be that he had placed all his evidence before the Tribunal and it ought to have been probative of his claims. In the absence of jurisdictional error, however, the fact that the appellant disagrees with the Tribunal’s findings provides no basis for the FCCA to intervene and this Court cannot find appellable error because it has not done so.

53    As indicated earlier, the appellant alleged, in various places, that the Tribunal was biased against him. There is, however, simply no evidence at all that the Tribunal might not have brought a fair, impartial and independent mind to its decision-making task: compare ALA15 v Minister for Immigration and Border Protection [2016] FCAFC 30 at [35]-[36]. There is no basis on which a fair minded and appropriately informed lay observer might reasonably apprehend that the Tribunal was biased in that sense. The allegation of bias has no basis and the primary judge was clearly correct to hold that it must fail.

54    Accordingly, the appellant has not identified any appellable error on the part of the primary judge. For the reasons stated, I would dismiss the appeal.

Associate:

Dated:    3 March 2017