AGQ15 v Minister for Immigration
[2015] FCCA 1036
•23 April 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AGQ15 v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 1036 |
| Catchwords: PRACTICE AND PROCEDURE – Summary dismissal – proceedings summarily dismissed. |
| Legislation: Migration Act 1958, ss.36(2)(a), 36(2)(aa), 424A, 476 |
| Spencer v the Commonwealth of Australia (2010) 241 CLR 118 |
| Applicant: | AGQ15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 800 of 2015 |
| Judgment of: | Judge Street |
| Hearing date: | 23 April 2015 |
| Date of Last Submission: | 23 April 2015 |
| Delivered at: | Sydney |
| Delivered on: | 23 April 2015 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondent: | Ms N. Senanayake DLA Piper |
ORDERS
The Proceedings be summarily dismissed.
The First and Second Applicants to pay the First Respondent’s costs fixed in the sum of $940.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 800 of 2015
| AGQ15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for a constitution writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 in respect of a decision of the Tribunal made on 13 February 2015 affirming a decision of the delegate not to grant the applicants protection visas.
The first respondent has moved for summary judgment. The grounds of the application are as follows:
1. The refugee review tribunal has made jurisdictional error in their decision on 16 February 2015.
2 The delegate-decision and reasons for its decision are unreasonable. falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers.
3. The concept of Wednesbury unreasonableness, described by Lord Diplock as a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it.
4. In my decision the decision maker has put all effort in dismissing my claim as implausible and fabricated, this demonstrates the bias decision maker had from beginning. It is not for the decision maker to find faults with the claim, but to ensure these claims are dealt accordingly as per law.
5. In the decision on page 9 of 41 at paragraph 87 the department states that it has no real understanding of people born and raised in Pakistan. These demonstrate the departmental inability to understand the risk and persecution faced by the applicant.
6. Further they take into account irrelevant consideration that "people like him are highly patriotic and do not want to leave Pakistan under ANY circumstances" This is an insult to the applicant suffering.
7. The tribunal has made an error and grave insult to principles of natural justice. In the summary of statement, the tribunal/department concludes that people like the applicant like to be buried in their homeland. This is totally irrelevant to the applicant life in danger. It is not enforced on the department to make assumptions on the death of the applicant and where the applicant funeral and burial should takes place is totally out of their legal jurisdiction.
8. The main focus of the tribunal is to assess the threat and level of persecution faced by the applicant NOT to convey their personal beliefs of how a person like the applicant belonging to a specific cultural and religious background would like to be buried.
9. . This is an uncalled for and just a baseless and bias opinion held by the respondents.
10. Respondent's failure to consider relevant material instead of considering material which fulfils their personal bias and understanding of people of Pakistan constitutes an error of law. And the applicant requests this Honourable Court to intervene.
11. Leaving a country and your family is not a decision one can make easily. In my situation lots of thought and consideration is given to leave the only place I have ever known. Yet the respondent's of the view is childish, offensive and full of prejudice.
12. Respondents were told that the applicant is an old and fragile man, who had enough of suffering all his life. Yet the respondents questioned his as if the applicant is a criminal.
13. After going through the hardships any reasonable person in the applicants position will have difficulty remembering the exact dates and times of incidents.
14. All the information was given to the respondents and adverse conclusions were made and wrong interpretations were made all because the respondent's failed to give relevant considerations to my claim and failed to understand the harmful situation faced by the applicant.
15. The evidence given by the applicant was deemed implausible and fabricated which is a deliberate mistake by the respondents and it has resulted in grave miscarriage of justice.
The application also identifies on the first return date:
The Court may hear and determine all interlocutory or final issues, or may give directions for the future conduct of the proceeding.
I take into consideration in respect to the Court’s summary disposal powers under s.17A (Federal Circuit Court Act 1999) and r.13.01 (Federal Circuit Court Rules 2001) the principles and caution identified in Spencer v the Commonwealth of Australia (2010) 241 CLR 118, at [24]-[25] and [59]-[60].
I agree with the submissions of the first respondent that the application fails to identify any arguable jurisdictional error. For the reasons given the findings of the Tribunal were open and cannot be said to lack an evident and intelligible justification. The adverse findings of credit were open to the Tribunal on the material before the Tribunal and it was a matter for the Tribunal to determine what weight to give the evidence before it. The grounds failed to disclose any arguable jurisdictional error.
The applicants applied for a protection visa on 18 March 2013 which was refused by the delegate on 13 February 2014. The applicant lodged an application for a review on 13 March 2014 and was invited to attend a hearing on 11 November 2014 which was postponed at the applicant’s request till 23 December 2014. The applicant appeared for the Tribunal on 23 December to give evidence and present arguments and was assisted by an interpreter.
The Tribunal carefully identified the claims and evidence of the applicant and what occurred at the delegate’s interview. The Tribunal summarised the evidence given at the hearing and the claims of the applicants and sent the applicants a letter under s.424A identifying particulars of the reason or part of the reason for affirming the decision under review most of which information had already been put to the applicant, but as the second applicant had not attended the hearing, the Tribunal complied with its statutory obligation in relation to the second applicant.
The Tribunal received a response from the applicants to the s.424A matter on 27 January 2015 which it carefully identified. The Tribunal found the applicants to be citizens of Pakistan and assessed their application on that basis. The Tribunal made an adverse finding of credit in relation to the applicant, relevantly in para.174:
174. Having considered all of the evidence, the Tribunal does not accept that the applicant is a witness of truth. The Tribunal finds that the applicant has manufactured all the applicants’ claims for protection in Pakistan, as set out below:
i. The Tribunal does not accept that the applicants’ religion is Shi’a Muslim and finds they are Sunni Muslim.
ii. The Tribunal does not accept that the applicant was a Shi’a cleric who travelled throughout Pakistan promoting peace and unity through lectures or talking with people, was an elderly or senior member of his organisation and was well-known throughout Shi’a communities including being well-known in [Q].
iii. The Tribunal does not accept that the applicant attended a Shi’a prayer site about 40 minutes’ drive from his house in [L].
iv. The Tribunal does not accept that the applicant encouraged one of his sons to join a Shi’a Islamic organisation at college or that the applicants received any threats or suffered any form of harm because of their son’s claimed membership of this organisation.
v. The Tribunal does not accept that the applicants were subject to threats, systematic discrimination, harassment and persecution or significant harm, and sought protection from the authorities, because of their religion which they claimed to be Shi’a, or because their family was doing well in business or relatively well off.
vi. The Tribunal does not accept that many of the applicants’ relatives have been killed, because of claimed attacks on the Shi’a and other violence, terrorism and beheadings.
vii. The Tribunal does not accept that the applicants travelled to South Korea in February 2008 to avoid any continuous threats, death threats or any form of persecution in significant harm; stayed there until October 2010 and thought it would be safe because the people who had previously made these threats would have moved on; but when they returned, these people found out, asked them for protection money and if they did not pay, threatened to blow up their house.
viii. The Tribunal does not accept that the second named applicant had a heart attack because of a telephone call or the attendance of investigating officers from the National Accountability Bureau at their residence on 1 March 2011.
ix. The Tribunal does not accept that any of the applicants’ sons were kidnapped in 2011 and the second named applicant’s jewellery was sold to secure his release.
x. The Tribunal does not accept that the applicants moved home on five or six occasions in Pakistan; the applicant was under constant surveillance; and the applicant had gone into hiding and mostly stayed at home to avoid the threat of serious harm or significant harm from any armed Islamic group, government authority, or any other group or individual.
xi. The Tribunal does not accept that the applicants’ son, daughter-in-law and grandson were stabbed in [Q] during a shopping trip in 2012 and that as a result, his grandson had to have surgery and a metal rod placed in his arm.
xii. The Tribunal does not accept that the applicants were subject to extortionate demands, people were sent to harass them, people came to his home and dragged him by the beard, and he sent his son’s wife and children to [Q].
xiii. The Tribunal does not accept that the applicants were of any interest to any armed Islamic group, including the Laskar-e-Jhangvi and Sepah-e-Sabah; any extremist, militant or armed Islamic group came to ask for more money, the applicant was caught and beaten, threatened with shooting, they sent people to harass them, more loans were taken by the extremist group in the applicants’ son’s name and the whole family was threatened. The Tribunal does not accept that an informer gave information to the Laskar-e-Jhangvi about them.
xiv. The Tribunal does not accept that the applicants were constantly harassed by the police, local extremist organisations and the general public who were always willing and ready to get the Shi’a into trouble by accusing them of false crimes and extortion.
xv. The Tribunal does not accept the applicant’s version of events when officers of the National Accountability Bureau came to the applicants’ residence in March 2011 in relation to an investigation concerning bank fraud allegations against one of their sons. The Tribunal does not accept that: any armed Islamic group was involved in this incident; the door was broken; they entered the house illegally; the applicant was assaulted; his hair and beard were pulled; he was threatened; a threat was made to blow up the house; a threat was made to kill the applicant and his family; abusive language was used; the second named applicant suffered a heart attack and was taken to hospital for treatment; the dignity of any occupants was violated; and the applicant was treated as a terrorist and major criminal.
xvi. The Tribunal does not accept that the applicants suffered any form of serious harm or significant harm in Pakistan prior to their departure to South Korea in February 2008 or between their return to Pakistan on 21 October 2010 and departure on 1 January 2013.
The Tribunal found that the applicant had manufactured all the applicants’ claims for protection.
The Tribunal had earlier identified in para.173 inconsistencies in the applicant’s evidence and had taken into account the applicant’s circumstances, age and health but found that the applicant had fabricated the applicants’ claims for protection. Relevantly, the Tribunal found:
176. The applicant claimed that he was a Shi’a cleric going to different places and cities giving lectures for peace and tranquillity, talked with people, was a very senior or elderly member of his organisation and was well-known because of his lectures and teachings throughout the Shi’a communities. He claimed that he was doing this when working as a train driver and also after his retirement in October 2000. He claimed that he was targeted as a Shi’a cleric, they came to his home, punched him, beat him and pulled his beard. The Tribunal was concerned that in the hearing, the applicant did not know some quite fundamental aspects of his claimed Shi’a religion such as the names of the 12 imams, could not identify the first imam or the last imam, did not know that the body of the eighth imam was located in Mashhad, Iran which is a significant Shi’a pilgrimage site where millions of Shi’a pilgrims visit every year including from Pakistan, and could not identify the name of the Shi’a organisation of which he claimed to be a senior or elderly member. The Tribunal has considered the applicant’s response in the hearing and the applicants’ response to the s.424A letter that his memory is affected because of his age and stress; whenever he meets a person he gives them advice and anyone who gives lectures to others is called a cleric; and when he was working as a train driver he used to travel to different cities and when he got the chance, gave lectures to people; and he was illiterate, listened to others and repeated what he had heard.
177. The Tribunal does not accept these explanations, because, as put to the applicant in the hearing, he was able to give detailed evidence about members of his family and other aspects of his claims and does not accept that his memory was so adversely affected that he could not remember even the most basic elements of his claimed religion. The Tribunal does not accept that the applicant is illiterate and only repeated what he heard from others because he gave evidence in the application forms that he was fluent in the English and Urdu languages and had completed high school. The Tribunal accepts that the applicant was a train driver who retired in October 2000, because he has given consistent evidence about these claims. However, the inconsistent evidence, vague evidence and lack of knowledge about basic aspects of his claimed Shi’a religion, leads the Tribunal to reject the claims that the applicant was a Shi’a cleric; travelled to different places to give lectures and also talked with people; was well-known in the Shi’a community; was targeted because by any armed Islamic group or individual he was a Shi’a cleric; and he attended a Shi’a place of prayer in Lahore. This also leads the Tribunal to find that the applicant is not a witness of truth in these proceedings and has fabricated all these claims.
178. The Tribunal has considered the applicants’ claims that they are Shi’a: as members of the Shi’a minority in Pakistan they fear persecution and significant harm; his son is married to a Shi’a woman from [Q]; their family members have been killed, stabbed, targeted, beaten, assaulted or suffered persecution or significant harm on account of this claimed religion. The Tribunal was concerned that not only was the applicant not a Shi’a cleric, but that the applicants were not Shi’a and were Sunni pretending to be Shi’a to enhance the visa application. These concerns were put to the applicant in the hearing and to the applicants in the s.424A letter and the Tribunal has considered the responses that the applicant still could not provide the names of the 12 imams, because his memory is affected by stress and old-age; evidence he gave in the Tribunal would be forgotten later; he would remember the information later; he sometimes forgets his prayers and does not know what to read and how many times has offered his prayer; it does not mean he is not Shi’a; if a person from another religion does not really know about their religion, does not mean they are not a member of their religion; the delegate agreed that the applicants were Shi’a; and why should he lie about his religion.
179. The Tribunal does not accept these explanations for the following reasons. First, having rejected the claim that the applicant is a Shi’a cleric, the Tribunal does not accept as plausible that even as an ordinary member of the Shi’a community, the applicant would not be aware of some basic elements of his claimed religion. One of the central distinguishing features of the Shi’a is the 12 imams including beliefs about the last imam and circumstances of his reappearance or return. In the hearing, the applicant provided five of the 12 imams’ names but did not claim that he did not know all the names of the 12 imams or other basic aspects of his claimed religion because he was never taught them, but instead, claimed that he could not recall this information in the hearing and would be able to remember at a later date. Importantly, the applicant could not recall the name of the last imam who holds a significant place in Shi’a beliefs. The Tribunal does not expect the applicant to have a detailed knowledge of his claimed religion, but does expect him to have some knowledge of the basic aspects of his claimed religion. The Tribunal’s view is strengthened because when this information was put to the applicants in the s.424A letter, and despite having time after the hearing to respond to the s.424A letter, the applicant did not provide the information that he claimed in the hearing he would recall later and instead, claimed that he could not provide any of the names of the 12 imams.
180. Second, in the hearing, the applicant was asked if he attended any Shi’a mosque in Sydney and he stated that he did not go to a mosque because he was scared but did not give the evidence, later given in response to the s.424A letter, that he was informed by his son not to go to a mosque, just pray at home because they did not want any more relations which can put them in trouble again and that they wanted to live in a peaceful environment. The Tribunal finds that the applicant has developed these claims over the course of the application and this casts doubt on the claim that even though he is Shi’a, he did not attend any Shi’a mosque in Sydney.
181. Third, the Tribunal has rejected the applicant’s claims that his memory was affected by oldage, a medical condition and stress because he was able to give clear evidence about many aspects of his claims in the hearing.
182. Fourth, the applicant claimed that many members of his family have been killed because they were Shi’a, but when giving evidence about this in the hearing, had great difficulty identifying anyone who had been killed and finally settled on a distant relative whom he could name and it took several further questions to find out when he could give an approximate date of when this had occurred or his relationship to this person. The applicant’s vague evidence leads the Tribunal to reject the applicant’s claims that many of his family members have been killed because they were Shi’a and finds this is another example of how the applicant has fabricated the claims to enhance the Protection visa application.
The Tribunal addressed the issue as to whether the applicants were Shia Muslims and relevantly found in para.183 that they were Sunni Muslims pretending to Shia Muslims for the purpose of enhancing their protection visa application.
It was in those circumstances that the Tribunal made the adverse findings identified in paras.186-197 and relevantly found:
198. Based on the independent country information and the applicants’ individual circumstances, taken singularly and cumulatively, the Tribunal finds that that the applicants do not face a real chance of persecution for any Convention reason in the reasonably foreseeable future from any armed Islamic group, militant group, the government or its agencies, a bank, or any other group or individual. The Tribunal does not accept that the applicants have a wellfounded fear of persecution for any Convention reason if they returned to Pakistan, now or in the reasonably foreseeable future.
The Tribunal then turned to the issue of complementary protection and relevantly found:
200. Based on the country information the applicants’ individual circumstances, taken singularly and cumulatively, and the findings that the applicants are not Shi’a but Sunni and have fabricated or developed their claims for protection, the Tribunal finds that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Pakistan, there is a real risk that they will suffer significant harm.
201. The Tribunal has considered the documents submitted at the hearing which referred to attacks against the Shi’a, the killings of Shi’a clerics and other persecution directed at the Shi’a and other religious minorities. The Tribunal has found that the applicants are Sunni Muslims. The applicants have not advanced any claims that, as Sunni Muslims, they have any fear of significant harm in Pakistan. On the available evidence, the Tribunal does not accept there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Pakistan, there is a real risk they will suffer significant harm as Sunni Muslims.
202. The Tribunal has accepted that the applicants’ son was the subject of an investigation relating to an alleged bank fraud and that officers of the National Accountability Bureau attended at the applicants’ residence in March 2011 in relation to that investigation. The Tribunal has found that the attendance of officers of the National Accountability Bureau at the applicants’ home was a legitimate exercise of authority and does not accept the characterisation of events given by the applicant, including that the second named applicant suffered a heart attack as a result of claimed abusive phone calls or when officers came to their residence. The applicant claimed that he was not blamed for the alleged bank fraud, they were issued passports in May 2011 and they had no difficulties in leaving Pakistan on 1 January 2013. The Tribunal finds, on the available evidence, that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Pakistan, there is a real risk that they will suffer significant harm as a result of an investigation by the authorities in Pakistan into an alleged bank fraud by one of their sons.
It was in those circumstances that the Tribunal concluded that the applicants were not persons to whom Australia had a protection obligation and the applicants did not meet the criteria under s.36(2)(a) or 36(2)(aa).
The first applicant asserted that the member should not have sat on the Tribunal and wanted a different member to determine the matter. The adverse decision by the Tribunal is not a ground upon which a reasonable person might believe that the Tribunal member failed to bring an independent and impartial mind to the determination of the matter on the merits. Accordingly, there is no substance in the complaint made as to the request for a different member of the Tribunal.
The applicants identified their precarious circumstances but this is not a Court of appeal and this Court cannot review the merits. The issue of credit was a matter within the Tribunal’s jurisdiction and given the reasons identified by the Tribunal the adverse findings on credit were clearly open. The applicant sought an adjournment so as to be able to provide further evidence about the applicant’s claims. There is no utility in granting an adjournment if the proceedings are doomed to failure as it will only unnecessarily increase costs and utilise limited Court time. Further this Court cannot receive fresh evidence on the applicant’s claims and therefor the adjournment lacks any utility.
The proceedings are clearly doomed to failure. I am clearly satisfied the proceedings have no reasonable prospect of success. The proceedings are summarily dismissed.
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Street
Associate:
Date: 28 April 2015
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Jurisdiction
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Procedural Fairness
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Summary Judgment
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