MZYWL v Minister for Immigration
[2012] FMCA 907
•5 October 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZYWL v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 907 |
| MIGRATION – Application for review of Refugee Review Tribunal decision – grounds in part misconceived – significant adverse credit findings by the Refugee Review Tribunal in respect of the applicant – whether credit findings open to Tribunal – applicant’s case constituting attempted merits review – application dismissed. |
| Migration Act 1958, s.424A |
| SZBYR v Minister for Immigration and Citizenship (2003) 235 ALR 609 Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802 |
| Applicant: | MZYWL |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 309 of 2012 |
| Judgment of: | Burchardt FM |
| Hearing date: | 6 September 2012 |
| Date of Last Submission: | 6 September 2012 |
| Delivered at: | Melbourne |
| Delivered on: | 5 October 2012 |
REPRESENTATION
| The Applicant: | In person (assisted by an interpreter) |
| Counsel for the First Respondent: | Ms Whittemore |
| Solicitors for the Respondents: | Sparke Helmore Lawyers |
ORDERS
The application is dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $5,400.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 309 of 2012
| MZYWL |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 28 February 2012. The Tribunal upheld the decision of the delegate of the first respondent not to grant the applicant a protection visa.
The reason for the rejection of the applicant’s case before the Tribunal was that the Tribunal made a number of extremely negative credit findings against the applicant, in effect rejecting almost every relevant aspect of his claims.
The applicant has filed an amended application on 28 June 2012, which he has supported by an outline of submissions filed on 22 August 2012. For convenience, I will endeavour to follow the paragraph numbers set out in his written submissions.
The relevant history of the matter
Despite the significant credit findings made against the applicant, a number of matters of his history are not of themselves controversial, and what follows has been taken from the Court Book (“CB”) and, in particular, from the decision of the Tribunal.
The applicant was born on 20 October 1982 in Pakistan. He lived in two different houses which appear to have been relatively close to Karachi.
The applicant was brought up as a Christian by his family, albeit that his father appears to have worked in Saudi Arabia for many years supporting the applicant, his brother, sister and mother.
According to the applicant, he had developed a friendship with a Muslim boy and his sister, the latter with whom he fell in love, with the affection being reciprocated.
The applicant returned to Pakistan for a visit in 2009 and again in 2011. He asserted that upon the latter occasion he was severely assaulted because of his relationship and this was the cause, together with related threats against him, of his application for a protection visa.
As earlier indicated, the Tribunal did not believe that the applicant had been in a relationship with a Muslim girl at all and otherwise roundly disbelieved the salient points in his story.
The grounds of application
Ground 4(i) – making a finding for which there was no evidence.
In the written submissions made in support of this ground, the applicant asserted:
“The Tribunal has given no consideration whatsoever, either active or implied, to the Applicant’s submission that he is not able to return to Pakistan because he has lived outside that country Pakistan and is in fear of being found by the Al-Qaeda extremist groups who attempt to locate him to convert him to Islam and to make him to join jihad. The Tribunal while refusing to consider the above fear of persecution failed to rely on any evidence but simply concluded that that the Applicant has fabricated own claims to support his written claims. (sic)”
Having referred to the decision of Alsop J in Htun v Minister for Immigration and Multicultural Affairs (citation not given but apparently Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802), the applicant’s written submissions continue:
“The Tribunal failed to consider the claims of the Applicant and rejects “the claims of any past harms or current fear of return because of the implausible nature of his claims about interest in him since his most recent departure from Pakistan”. The Tribunal made a positive finding of the fact that the Applicant as a result of his Pakistani Christian ethnicity and his status as a minority Christian in Pakistan had been subject to significant levels of discrimination whilst he had lived in Pakistan. The Tribunal in its decision quoted the most recent International Religious Freedom Report of the United State Department of State in respect of Pakistan published on 13 September 2011. The Tribunal failed to consider any of the contents of that report or any relevant articles submitted by the Applicant along with the claims in support of his fear of persecution.”
The matters which the first respondent submits defeat this component of the applicant’s claim are set out at paragraphs 8 to 12 of the first respondent’s written submissions. In summary, the submissions made were that:
a)The Tribunal accepted that the applicant was a Christian but rejected his claims to fear harm on the basis of strong adverse credibility findings.
b)The Tribunal found that the applicant was not a witness of truth and had fabricated his claims to have been in a relationship with a Muslim girl. This finding was particularly based upon the applicant’s return to Pakistan from Australia in 2009 and 2011.
c)The Tribunal found completely implausible the applicant’s evidence that his mother continued to reside in the family home alone, despite the family having been attacked previously by members of terrorist groups. The Tribunal found that the applicant’s failure to mention the continued mistreatment of his family in his written statement to the Department indicated that such claims had been fabricated.
d)The Tribunal had regard to independent country information on the treatment of Christians in Pakistan, but did not accept that it supported a conclusion that all Christians in Pakistan were at risk of persecution because of their faith. While such difficulties as Christians faced often arose in the context of fraught personal relationships, the Tribunal did not accept that this applied to the applicant.
The above paraphrase of the first respondent’s written submissions at paragraphs 8 to 12, in my view, correctly sets out what the Tribunal actually found. The reality is that the Tribunal simply did not believe the applicant and the findings that the Tribunal made were plainly open to it on the evidence. The conclusion that the applicant’s case that he feared persecution on return was substantially undermined, if not destroyed, by his two returns in 2009 and 2011 is plainly one that which arose on the evidence before the Tribunal.
Similarly, the evidence of the applicant’s mother living on her own came from him, and its implausibility, was a conclusion the Tribunal was entitled to reach.
Ground (ii) – by coming to a conclusion that was so illogical or irrational that no reasonable independent merits reviewer could have reached it.
Here, the applicant makes a number of assertions. First, it is asserted that the Tribunal’s finding of the applicant’s claim (as to his mother living alone in the family home) “as completely implausible and believes that it is evidence of the fact that the applicant would simply make any statement to support his claims” was made outside the limits of the function and powers conferred upon it. It is said that this was relying upon hearsay evidence. Of course the evidence itself, to the extent that it had been obtained, came from the applicant himself and further, the Tribunal is clearly not bound by the rules of evidence.
The applicant also claimed that the Tribunal failed to consider an integer of his claim regarding his alleged inability to re-enter Pakistan. In fact, the Tribunal was well aware that the applicant could re-enter Pakistan and found that he would not face harm if he did so.
Third, the applicant asserts that the Tribunal’s decision involved a failure to exercise jurisdiction, and was an illogical and irrational conclusion that the Reviewer could not properly reach. These assertions all flow, however, from an acceptance of the applicant’s claims as a datum. The Tribunal did not accept the applicant’s claims and these criticisms are therefore misconceived.
5. The second respondent fell into jurisdictional error by failing to have regard to all relevant material
This ground repeats the issue of hearsay evidence. It asserts (without giving any particulars to support it) bias on the part of the Tribunal, and a failure to offer a fair process. A number of other unparticularised matters are asserted.
To the extent that a complaint is made of hearsay material, this matter has already been dealt with above.
To the extent that any assertion of bias is pressed, all one can say is that a fair reading of the decision of the Tribunal does not suggest at all that the Tribunal did not properly bring a mind free of pre-judgment to bear upon the case.
To the extent that the applicant complains of an unfair hearing, it is clear that the Tribunal raised concerns and reservations with the applicant and gave him an opportunity to respond (see paragraph 35 CB 152, paragraphs 37-38, 41, CB 159 and paragraphs 49-51, CB 155).
6. The second respondent fell into jurisdictional error by failing to consider most of the applicant’s claims under the convention
This claim appears to me to be a straightforward merits review. The substantive complaint made is that the Tribunal failed to believe the applicant’s evidence and claims. While it is true that the Tribunal did, as already indicated, completely fail to believe the applicant, nonetheless it was open in the circumstances for the Tribunal to do so.
7. The second respondent fell into jurisdictional error by failing to have regard to irrelevant factors
Once again, this appears to be a complaint essentially of merits review. It is asserted inter alia that “The Tribunal failed to make a decision honestly and conscientiously, and it was not done with good faith. The Tribunal made a jurisdictional error thereby”.
This complaint appears to arise simply out of the Tribunal’s failure to believe the applicant and is plainly not made out.
The remainder of the other matters set out in the applicant’s written submissions are hard to construe but on any view do not give rise in my view to error, let alone jurisdictional error, on the part of the Tribunal.
8. The second respondent denied the applicant procedural fairness and thereby fell into jurisdictional error
It would seem that the complaint here is that the Tribunal failed to give the applicant an opportunity to comment on information that the Tribunal considered would be the reason, or part of a reason, for affirming the decision under review. The material of which complaint is made in this regard is as follows:
“The Applicant submit that the Tribunal should have given the Applicant the opportunity to comment on any adverse information that the Tribunal had as it failed to invite the Applicant to comment on those information. The Tribunal made a jurisdictional error. The Applicant submit that the Tribunal dealt with wrong issues such as, why the Applicant failed to give details of his family members harassment in the original statement of claims and the Applicant’s failure to leave his mother alone at home after his departure from Pakistan etc. If the Tribunal considered these information as vital for the determination of the protection claims under convention, the Applicant should have been given the opportunity to comment on those information the Tribunal thought fit. The Tribunal made an error under the Act.” (sic)
There was of course no obligation on the Tribunal pursuant to s.424A of the Migration Act 1958 (“the Act”) to put to the applicant doubts about the credibility of his claims. Such matters, as the first respondent correctly submits, do not constitute information for the purpose of that section. Information does not include inconsistencies or doubts about an applicant’s claims arising from inconsistencies (see SZBYR v Minister for Immigration and Citizenship (2003) 235 ALR 609 at [17]).
Furthermore, the evidence contained in the applicant’s written statements to the Department and his oral evidence to the Tribunal are specifically excluded from definition of information (once again as the first respondent submits) by ss.424A(3)(ba) and (b).
I accept the submission that no breach of the Act occurred.
Oral submissions made at hearing
The applicant sought to tender an extract from his mother’s passport showing that she was living in Saudi Arabia. I marked the document as MFI 1, given that it was the subject of objection by counsel for the first respondent. Clearly, material of this character, which was not before the Tribunal, is not, at least in these circumstances, admissible.
I would be prepared to accept, in any event, that the applicant’s mother may have moved to Saudi Arabia, but given that the reasons for her doing so would in any event remain wholly unclear and untested in my view, nothing turns on this point.
The applicant complained that the Tribunal had not believed that he was a Christian. In fact, it is clear that it did.
The applicant also complained of insufficient attention in the Tribunal’s reasons to his own circumstances but rather asserted that the Tribunal concentrated excessively upon his relatives. A fair reading of the Tribunal’s decision shows that this submission is completely misconceived. The Tribunal paid close attention to the applicant’s claims but, unfortunately for him, rejected them.
The applicant also complained that he had not been asked any questions about the events of 2011 but, as counsel for the first respondent correctly submits, it was not for the Tribunal to make the applicant’s case.
Counsel for the Minister referred the Court to the relevant extracts of the decision which in fact showed that the Tribunal had indeed properly addressed all the matters of which the applicant made complaint.
For completeness, I would observe that counsel’s reference to paragraphs 44 to 48 of the Tribunal’s decision shows that the applicant’s particular claims were dealt with (CB 154-155).
Likewise, the applicant’s return to Pakistan in 2009 and 2011 is dealt with in paragraphs 52-53 (CB 155-156). At paragraph 61 (CB 158), the Tribunal expressly accepted that the applicant was a Christian, although the Tribunal observed that the applicant had not generally been truthful.
The Tribunal did deal in terms with the applicant’s fears on the basis of being a Christian in Pakistan (see paragraphs 70-72, CB 160-161).
Conclusion
The applicant’s case was roundly disbelieved by the Tribunal. Having read the court book and the Reasons for Decision of the Tribunal, it seems clear to me that this was an outcome well-open to the Tribunal on the facts as they were presented. The applicant’s claims are unsustainable and the application must be dismissed with costs.
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Burchardt FM
Date: 5 October 2012
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