MZZBP v Minister for Immigration

[2013] FCCA 453

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZBP v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 453

Catchwords:
MIGRATION – Application for judicial review of Refugee Review Tribunal decision – grounds of application asserting that claims of persecution based on political views not considered – whether applicant afforded procedural fairness – whether Tribunal’s decision irrational. 

Legislation:  

Migration Act 1958 (Cth)

Minister for Immigration and Citizenship v SZOCT [2010] FCA SC 159
SZBEL v the Minister for Immigration and Multicultural and Indigenous Affairs [2006] 228 CLR 152
Minister for Immigration and Citizenship v SZOCT (2010) 189 FCR 577
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152

Applicant: MZZBP

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 1303 of 2012

Judgment of: Judge Burchardt

Hearing date: 5 April 2013

Date of Last Submission: 5 April 2013

Delivered at: Melbourne

Delivered on: 11 June 2013

REPRESENTATION

Counsel for the Applicant: Ms Murphy

Solicitors for the Applicant: Victoria Legal Aid

Counsel for the First Respondent: Ms Symons

Solicitors for the First Respondent: Clayton Utz Lawyers

ORDERS

1. The Application is dismissed. 

2. The Applicant pay the First Respondent’s costs. 

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

MLG 1303 of 2012

MZZBP

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

And

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introductory

1. The applicant seeks judicial review of a decision of the Refugee Review Tribunal dated 7 September 2012.  The Tribunal affirmed a decision of the delegate of the Minister not to grant the applicant a Protection (Class XA) visa. 

2. The applicant’s amended application filed 5 March 2013 lists three grounds of review.  The oral submissions advanced tended somewhat to diverge from the grounds as put.  In my opinion, none of the criticisms advanced of the Tribunal’s decision are made out and for the reasons that follow, the application will be dismissed with costs. 

3. It should be noted that it is necessary, in order to understand the submissions made by both parties, to deal in some detail not only with what the Tribunal found but also the nature of the applicant’s claims as advanced from time to time.

The applicant’s claims

1. At CB1-2, a letter from the applicant’s agent, which accompanied his original application for a Protection visa, is set out.  This articulates the applicant’s claims of fear of persecution as being based on:

   a)the fact that he was a member of a religious minority in Pakistan, namely, the Muskeen sect; 

   b)the applicant was an ethnic Kashmiri who had suffered persecution as a consequence of his ethnicity; 

   c)fear of persecution because of his association with a social group, being persons and family members of those had been serving officers for the police force in Pakistan.  It was asserted that the applicant’s brother was killed whilst serving with the Pakistani police. 

2. At CB59 and following, there is a letter from the applicant’s agent dated 28 April 2011 and tranches of materials submitted on behalf of the applicant. 

3. At CB61, in the agent’s submission, there is reference to the fact that the applicant’s brother had been murdered and that he himself was likely to be killed thereafter.  It is also asserted that the applicant “has demonstrated a resistance to the extremist Taliban religious ideology.  My client’s brother has paid with his life for daring to join the Sunni Maskeen sect.”

4. It was further asserted that the Maskeen sect was a distinct religious sect and was opposed to the extremist form of Sunni Islam practiced by fundamentalist Taliban in Pakistan.

5. At CB62, the agent’s submission went on to assert, relevantly, that:

   “(The applicant) is a moderate and progressive person who opposes extremist religious views and is seriously opposed to the Taliban and the sub groups that make up the Taliban. …”

6. On the same page, concerns are expressed that the applicant would face being targeted as a Kashmiri (a minority within Pakistan) and because a family member had been in the police. 

7. At CB63, the applicant’s claims of serious harm were asserted to be Convention based.  This was partly on the basis of being opposed to the fundamentalist religious policy of the Taliban.  The submission also relevantly asserted:

   “Additionally my client maintains that becaseu (sic) he is opposed to the Talban (sic) on a religious level he is also opposed to their political activities and other forms of inhuman actions in encouraging suicide bomber ins and targeted killings.  He finds that abhorrent and maintains that he opposes this form of political expression.  My client fears that this opposition in itself places him as a natural target of the Taliban and the extremist forces that are growing daily in Pakistan. …”

8. A statement of the applicant is set out at CB88-89.  The applicant asserted his reasons for making his claim for protection.  They are essentially concerned with his conversion to the “sunni maskeen”.  The statement also asserts that the applicant’s brother was killed and that there was a letter in his pocket written by the Taliban.  The statement went on to assert that the Taliban had started to threaten his family by making phone calls to his parents asking about him.

9. At CB116 and following, the decision of the delegate is set out.  The delegate noted that “the applicant is claiming to fear serious harm as a result of his religious beliefs and his subsequent imputed political opinion in opposition to the Taliban in Pakistan.”

10. I note that at CB117, the delegate recorded:

    “At interview, the applicant emphasised his religious beliefs as his main reason for fearing serious harm if he returned to Pakistan and indicated that he believed that the alleged attack on the family home was inspired by the religious beliefs of his brother and himself.”

11. I note that the claims of possible persecution as a family member of a police officer and as a person as Kashmiri ethnicity were described by the delegate as being put only in broad terms or not at all at CB117.

12. The delegate roundly disbelieved the applicant on just about all points and rejected his application. 

13. Although various further materials were sent to the Tribunal in due course, none of them are of sufficient moment to require comment. 

The decision of the Tribunal

1. The Tribunal was obviously aware that the applicant’s claim was in relation to the question of his politics.  At paragraph 22 (CB217), the Tribunal recorded:

   “On 28 April 2011, the Department received a number of documents from the applicant’s adviser including a submission in which he stated that the applicant claims he is a member of the Sunni Maskeen religious sect and that he and family members converted to this sect.  The adviser also submitted that the applicant is a moderate and progressive person who opposes extremist religious views and is seriously opposed to the Taliban and the sub groups that make up the Taliban. …”

2. At paragraphs 32 and following, the Tribunal set out the record of the interview with the applicant at the Tribunal hearing.  It is clear that the Tribunal went into considerable detail about the sect and made clear to the applicant that it had doubts about the rapidity of both his conversion and that of his family.

3. The passages dealing with this question of the applicant’s conversion and indeed, the existence of the Maskeen Sunni sect, occupy much of the Tribunal’s reasons for decision.

4. Having referred to country information in some detail, the Tribunal found at paragraphs 94-96 (CB239-240):

   “94.  The Tribunal does not accept that the application converted to a Sunni sect called Sunni Maskeen or Shalandian in 2007 and that he is therefore a member of this religious minority in Pakistan.  The Tribunal does not accept the applicant’s claims regarding his and his family’s alleged religious beliefs for several reasons.  The first is the fact the Tribunal has been unable to find any information about the existence of this particular sect in Pakistan or any information about this sect’s beliefs or practices.  As the Tribunal noted in the hearing, given the availability of independent information regarding the different religions in Pakistan and the problems particular religious groups face in the country due to sectarian violence, the Tribunal finds it implausible that if this Sunni sect were present in Pakistan, that there would be no mention at all of this religious group in any of the various sources.  The Tribunal notes the applicant’s evidence that it is a small group which has almost vanished as a result of attack by the Taliban.  The Tribunal does not accept that if there was such a sect in Pakistan and they had been the focus of attack by the Taliban, as suggested by the applicant, there would be no reference to this in the large amount of material available about the situation in Pakistan.

   95.  The Tribunal found the applicant’s evidence regarding this alleged sect’s beliefs and practice to be lacking and his account of the differences between Sunni beliefs and practices and that of Sunni Maskeen to be fanciful.  For example, the Tribunal does not accept that it is part of the Sunni faith that followers are not allowed to go overseas or are required to do Jihad.  Nor does the Tribunal accept that Sunni women cannot get an education and that their role is limited to cooking and cleaning in the house.

   96.  The Tribunal also found the applicant’s evidence regarding his and his family’s conversion from being practicing Sunnis to this different Sunni sect implausible.  The Tribunal finds it unbelievable that the applicant would make such an important and significant decision to change his religion after attending only one meeting of this alleged sect.  Similarly, the Tribunal finds it far-fetched that the applicant’s parents would simply rely on the applicant and his brother’s limited knowledge and experience of this sect, based merely on their attendance at one meeting, to also make this momentous decision to abandon their Sunni beliefs and become a member of this alleged sect.  The Tribunal does not accept that the applicant’s parents decision to convert so quickly was due to any alleged difficulties they faced as Sunnis such as his mother not being able to leave the house or she would be killed.”

5. Based on that finding, the Tribunal went on to reject a number of the factual assertions made by the applicant related to his conversion.  The Tribunal accepted at paragraph 104 (CB241), that the applicant’s brother may have died three months after the applicant left Pakistan.  For various reasons which seem to me to be cogent, however, the Tribunal had some difficulties with the inconsistent reports made by the applicant about the circumstances of his brother’s death. 

6. The Tribunal did not accept that the applicant’s brother was murdered by the Taliban because he had converted.  The Tribunal did not accept that the brother had changed his religion (CB242, paragraph 107). 

7. The Tribunal rejected all claims of possible persecution on the grounds of Kashmiri ethnicity or being a member of a family, one of whom had been in the police force.  At paragraph 113 (CB243), the Tribunal said:

   “In summary, the Tribunal does not accept that the applicant, his brother or his family converted to a Sunni sect called Sunni Maskeen.  The Tribunal therefore does not accept that either the applicant or his family have received any threats, either in letter or by phone, by any person or organisation including Dar Ul Aloom or the Taliban.  The Tribunal does not accept that either the applicant or his brother has had any contact with the Taliban, either in Shalbandi Shareef or in Lahore and that they have been attacked by the Taliban and his brother subsequently killed.  The Tribunal does not accept that any threat was made against the applicant by the Taliban at the time of his brother’s death and the Taliban have continued to enquire about his whereabouts, with their efforts culminating in a violent attack against the applicant’s family in May 2010.  The Tribunal does not accept that since that time the applicant’s family have lived elsewhere, either separately or together, and that they have continued to receive calls from the Taliban.  For the reasons provided above, the Tribunal finds that the applicant’s claims regarding his religion are not credible and therefore the Tribunal does not accept that if he returns to Pakistan, now or in the reasonably foreseeable future, the applicant faces a real chance of persecution for reason of his alleged Sunni Maskeen religion …”

8. The Tribunal went on, at paragraphs 114 and 115, to deal with the police association matters in terms which have not been the subject of challenge and at paragraphs 116 and 117 with claims of persecution on the grounds of being of Kashmiri origin.  Those likewise have not been the subject of challenge. 

9. At paragraph 117, the Tribunal said:

   “… The Tribunal does not accept the adviser’s contention, made in his submission to the Department, that the applicant is a moderate and progressive person who opposes extremist religious views and is seriously opposed to the Taliban and the sub-groups that make up the Taliban.  The Tribunal has carefully considered the evidence provided by the applicant both in his written statement and in the hearing and finds that he has not articulated or expressed any views consistent with his adviser’s claim and therefore the Tribunal does not accept that the applicant faces a real chance of persecution for reason of a political opinion, either imputed or real. …”

The grounds of application

Ground 1

The decision of the Tribunal was affected by an error of law in that its findings in relation to the applicant’s religious beliefs was not based on findings or inferences of fact grounded upon probative material.

1. The particulars appended to this ground assert that the applicant clearly articulated a claim relating to persecution feared on the basis of his political opinion, namely his progressive and moderate views and his opposition to fundamentalist Sunni Islam.  The particulars go on criticise the findings of the Tribunal on the question of the differences between the applicant’s religious belief and Sunni as being fanciful.  It is submitted that the Tribunal erred by failing to identify any material upon which that finding of fact could be made.  In oral submissions the matter was put in this fashion but also in a slightly more extended way. 

2. It was submitted that the applicant had also advanced the claim set out at paragraph 6(b) of the applicant’s submissions, namely that he faced persecution because of his moderate and tolerant religious views.  It was submitted that the delegate failed to consider the religious beliefs separately from the applicant’s conversion and failed completely to consider the question of the applicant’s moderate progressive opinions, despite being alert to this as an integer of his claim.

3. Counsel for the applicant relied on various authorities including the Minister for Immigration and Citizenship v SZOCT (2010) 189 FCR 577 in support of the proposition, which I accept is accurate, that there must be probative material before a Tribunal to enable findings of fact to be made.

4. In summary, it was submitted that the rejection of the applicant’s assertion about his religious beliefs and the findings made about the Sunni religion were made without probative material and further, that the Tribunal had failed to consider the question of the applicant’s moderate political views.

5. In reply, putting the matter again in summary form, the first respondent submitted that while it was true there was no direct material grounding the findings made by the Tribunal about the applicant’s religion, there were other matters, including significant credit findings that were singularly and cumulatively capable of supporting the conversion finding. 

6. In my view, the submissions of the first respondent should be upheld.  The fact is that the Tribunal simply failed to believe the applicant’s assertion that there even was an alternative religion to which he belonged.  Once this conclusion is reached, it is difficult to see how any other errors on the Tribunal’s part would be operative. 

7. While I accept that it is the case that there was no material before the Tribunal disclosed by the Court Book to support the finding that Sunni followers are not allowed to go overseas or required to do jihad, nor that Sunni women cannot get an education and that their role is limited to cooking and cleaning in the house, this is not decisive.  (Indeed, it might reasonably be said that the Tribunal might have made such a finding as a matter of judicial knowledge).  In any event, these findings were clearly not dispositive of the matter.  What was truly dispositive in my view was the fact that the alleged religion did not exist. 

8. Insofar as it is put that the Tribunal made no finding about the applicant’s moderate political views, this is not the case.  The Tribunal clearly dealt with the matter at paragraph 117 in the passage set out above.  I will return to this issue when I deal with ground three, which also raises it.

Ground 2

The Tribunal denied the applicant procedural fairness by failing to notify him of an aspect of his account that was in doubt, namely the content of his political views.

1. The particulars appended to this ground essentially complain that the Tribunal did not ask the applicant to comment on or expand upon his claim relating to his political opinion or indicate that there was an issue as to whether he was or was not a progressive and moderate person.

2. The applicant’s written submissions point to the fact that the Tribunal was cognisant of this aspect of the applicant’s claim as indicated at paragraph 22 of the Tribunal’s reasons.  That of course is a correct assertion.  It is also asserted (paragraph 33 and following of the applicant’s written submissions) that the questioning of the applicant by the Tribunal focused upon his religious conversion and the difference between his new religion and his previous one.  Once again, that is an accurate assertion.  In oral submissions what was emphasised was the Tribunal’s failure to tell the applicant of doubts about his moderate views.  It was submitted that this should have been done.  It was submitted that there was simply no procedural fairness granted by the Tribunal to the applicant in relation to this integer of his claims.

3. The written submissions of the first respondent point accurately enough to paragraph 117 (CB244) of the Tribunal’s decision, in which the Tribunal rejected the claims that the applicant was a moderate and progressive person.  

4. The written submissions of the first respondent point to the fact that the applicant himself had never articulated this claim.  It was only ever articulated in the fashion that I have set out earlier by his adviser.  The applicant was afforded at least three opportunities to do so during the hearing, either himself or through his adviser, as indicated at paragraph 47 of the first respondent’s written submissions.  Indeed, it has been asserted that during the hearing the Tribunal went so far as to ask the applicant’s adviser if there were any questions he would like the Tribunal to ask the applicant, which opportunity the adviser took up and then identified a number of matters and questions which did not include this one. 

5. The Tribunal’s finding at paragraph 117 (CB244) was that the applicant:

   “… has not articulated or expressed any views consistent with his advisor’s claim …”

6. In my view it is correct to say, as the first respondent’s written submissions do, that the Tribunal was not obliged to give the applicant a running commentary on what it thought about the evidence presented to it or to expose its thought processes to scrutiny by the applicant as part of the hearing (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [48]).

1. It is also true, as the first respondent submits that the Tribunal did not reject aspects of the applicant’s case that had been accepted by the delegate.  The delegate did not deal at all with the applicant’s claim based on political opinion.  This is a materially different set of circumstances to those in SZBEL. 

2. In the circumstances described, I do not think that the Tribunal fell into jurisdictional error by failing to alert the applicant to the fact that it had doubts about what, in truth, was his adviser’s claim as to his political views. 

Ground 3

The Tribunal’s finding that the applicant had not expressed beliefs consistent with his claim that he was a moderate and progressive person is irrational.

1. The particulars appended to this ground assert that the applicant had clearly voiced his concern about the way Sunni Islam was practised in Pakistan, the association of Islam with terrorism and his support for equality between men and women.  It is asserted that the finding that the applicant had not articulated or expressed views consistent with his claim to be politically moderate and progressive was therefore illogical and clearly contrary to the evidence.

2. Neither the written nor oral submissions of the applicant expanded substantially upon the ground expressed which stands according to its own force. 

3. In my view, the first thing to be said is that the Tribunal’s assertion that the applicant himself had not articulated a claim supportive of the adviser’s characterisation of his circumstances is prima facie correct.  The reality is that looked at fairly and as a whole, the applicant’s claims were essentially those of fear of harm on the basis of his conversation to the Sunni Maskeen sect and his claims of fear based upon his family membership and ethnicity. 

4. The applicant never said in terms that he was those things that the agent said he was. 

5. The Tribunal did not believe the applicant’s central point, namely that he had converted to a new sect and thus put himself at risk of harm.  It dismissed the claims based upon his family association and ethnicity in terms that are not the subject of criticism. 

6. In these circumstances, the Tribunal’s finding does not seem to me to be irrational or illogical and it follows that this ground must fail. 

Conclusion

1. For these reasons the application must fail and will be dismissed with costs. 

I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Judge Burchardt.

Date:  11 June 2013