MZZTF v Minister for Immigration

[2014] FCCA 1749

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZTF v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 1749

Catchwords:
MIGRATION – Application for review of RRT decision – grounds of application all merits review – serious adverse credit findings made by Tribunal – Tribunal’s decision clearly open on the materials before it – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Minister for Immigration and Multicultural Affairs, Re; Ex parte Durairajasingham (2001) 168 ALR 407

Applicant: MZZTF

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 1566 of 2013

Judgment of: Judge Burchardt

Hearing date: 18 June 2014

Date of Last Submission: 18 June 2014

Delivered at: Melbourne

Delivered on: 14 August 2014

REPRESENTATION

The Applicant: In Person

Counsel for the First Respondent: Mr Rogers

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The Application is dismissed. 

2. The Applicant pay the First Respondent’s costs fixed in the sum of $6,100. 

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT MELBOURNE

MLG 1566 of 2013

MZZTF

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introductory

1. The applicant seeks judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 10 September 2013.  The Tribunal affirmed a decision of a delegate of the first respondent not to grant the applicant a Protection (Class XA) visa.

2. The matters advanced by the applicant in support of his application for review are all quite clearly matters of merits review and it follows, given that the Tribunal’s decision was clearly open to it on the materials, that the application must be dismissed.

The Application and its History

1. The application filed on 23 September 2013 lists as grounds of application:

   “The Tribunal took into account an irrelevant consideration that the decision received contains much information incorrect about my party and me.  I submitted true evidence with news article and other references which has to be overlooked.  I was life threatened, still my party and my family strictly advised me that the current situation has gone more worst and if I turned back to Pakistan, I’ll be straight away killed.  So it is my sincere request to you that please provide me justice.”

2. The affidavit filed in support simply annexes the Tribunal’s decision.  The applicant has filed no further materials despite being given the opportunity to do so by the orders of Registrar Caporale made on

   
   

   20 November 2013. 

The Oral Submissions Made at Court

1. In oral submissions, the applicant said that the Tribunal took only two points from his application.  One was that his political party was a terrorist party and anti-Christian.  The applicant rejected these claims.  He gave a history of his political party organisation having headquarters for many years close to a church and that no trouble had occurred as a result.  The applicant also referred to a recent incident involving a church in Peshawar and said that his party took the biggest action against this. 

2. I do not have a transcript of the hearing but the above gives a flavour of what the applicant had to say.  Doing the best I can, given the applicant’s difficulties in expressing himself, I would take it that he was asserting the Tribunal had failed to address his claims other than those to which he referred.  The assertions made as to fact, of course, are plainly merits review.

3. In submissions in response, counsel for the first respondent took issue with the proposition that the Tribunal had misconstrued the nature of the applicant’s political organisation.  It was submitted that the Tribunal simply did not believe that the applicant was a member of that organisation.  It was not the nature of the organisation that had led to the decision.  Counsel submitted that the grounds of review were simply merits review.

4. In reply, the applicant said that he had explained at the interview his role in the political party since 1996.  He said that he was in constant contact with the organisation and talked daily to persons in it.  He said there was confusion about his membership and that he would like to tell the Court the history of the matter.  He said words to the effect of “if you want, the whole record of my activities I can provide them from beginning till now.”

5. I note that there did appear to be some difficulties of communication between the applicant and the interpreter, but not such that the applicant was deprived of an opportunity to say to me, through the interpreter, what he wanted to say.

6. It is immediately apparent that the matters advanced by the applicant essentially constitute criticisms of the Tribunal’s findings.  As the written submissions for the first respondent correctly assert, that is not a matter giving rise to jurisdictional error.  It is the function of the Tribunal par excellence to make findings as to credibility which the Tribunal did (Minister for Immigration and Multicultural Affairs, Re; Ex parte Durairajasingham (2001) 168 ALR 407 at [67]).

7. In the circumstances, it is appropriate to see what materials were before the Tribunal and what the Tribunal made of them.

The Materials before the Tribunal

1. The gravamen of the applicant’s claims as set out in his application is at Court Book (“CB”) 50 where there is a statement translated from Urdu.  The applicant said that he was a member of the Sunni Tehreek movement which was an organisation fighting against jihadist and terrorist mullahs.  The statement asserted that thousands of members of that organisation had been killed.

2. The statement asserted that the applicant was a responsible leader of this group and as a result, was a target of the Sipah-e-Sahaba which is a sub-organisation of Pakistan Taliban.  The applicant said that Sipah-e-Sahaba had threatened to kill him a few times but had not had a chance to do so but that on 12 May (I infer 2012) four people riding two motorcycles attempted to kidnap him but he escaped.  They also came to the applicant’s home and inquired after him.  These events precipitated the applicant’s departure from Pakistan to save his life.

3. The statement went on to assert that terrorists are still coming to ask the applicant’s wife about him and that the wife had been to the police for help without avail.

4. Also included in the materials filed with the application were documents forwarded, it would appear, by the applicant in support of his application for the business visa upon which he originally arrived in Australia.  These show that the applicant had represented that he was a customer of a business in Australia and needed a visa to come to Sydney to visit the factory with a view to purchasing equipment (see for example CB 64, 75 and 77).

5. The Court Book also contains at CB 94-106 documents provided at the interview with the delegate which show inter alia a purported membership card of the applicant as a member of Sunni Tehreek and various photographs purporting to show the applicant active in that organisation, together with a number of other documents.

6. At CB 107-113, there is an email from the applicant’s representative attaching two First Information Reports and at CB 114-121, there are further documents provided by the applicant in support of his application.

7. The delegate’s decision is at CB 122-145.  I note that at CB 129, the delegate analysed the applicant’s claims.  Although the delegate referred to “additional information/claims”, the analysis seems to be entirely consistent with the applicant’s first statement save that it added the matters of the First Information Reports and a further claim that in August 2012, the applicant received a telephone call informing him that four of his colleagues had been killed close to where the applicant lived. 

8. The delegate noted that fraudulent documentation was readily obtainable in Pakistan and placed more weight on the applicant’s verbal and written account when making assessment of his claims (CB 131).

9. Put shortly, the delegate did not believe the applicant’s claims.  This was in part because of the untruthfulness of his original application for a business visa and, in part, because the applicant had already travelled overseas on several occasions, in any event.  The delegate rejected the application.

10. Although the applicant’s migration agent forwarded written submissions (CB 153-159) to the Tribunal, they do not, in my opinion, take the matter further.  The applicant also filed an amended statement (CB 162-167).  Although the applicant asserted in that statement that his previous lawyers had failed to put forward all the matters he wished to rely on, the written statement does not seem to me to expand in any significant way on the claims already made. 

11. The agents forwarded a further letter together with a re-translated version of the applicant’s statement (the applicant had complaints of the interpretation) at CB 174-177.  The agents also forwarded an annotated version of the delegate’s decision record highlighting criticisms of the same. 

The Tribunal’s decision

1. The Tribunal paraphrased the application and the relevant law at CB 192.  The Tribunal went on at CB 192-202 to record the claims and the evidence given at the Tribunal hearing.  The Tribunal noted that the applicant had travelled to Italy in December 2011 on business.  It also noted that the applicant provided his passport and a membership card of Sunni Tehreek and photographs of himself with the leader of that organisation to the Tribunal (paragraphs 27-28, CB 193). 

2. I note that paragraphs 52-53, the Tribunal recorded:

   “52.  I put to him that in his application for a business visa, according to the delegate’s record of decision he had claimed in his short term business visa application that he owned a company called Maccah Trade Impex and provided evidence of tax returns.

   53.    I asked if there was such a company and he said that his friend’s father was the owner of this company.  He said that this was the company that cut marble, amongst other things.” 

3. The Tribunal traversed with the applicant the history of his travel to Iran, which the applicant explained as being to get a visa for Venezuela which he did not ultimately take up (paragraphs 56-58 CB 196) and the fact that the applicant had gone to Malaysia in 2001 as a tourist.

4. It is perhaps sufficient to say that the Tribunal recorded a number of matters it put to the applicant about his membership of Sunni Tehreek and that the applicant was recorded by the Tribunal as giving, at times, inconsistent answers.  Amongst other things put to the applicant was the proposition that Sunni Tehreek was, contrary to the applicant’s assertions, radical and violent.  It was in this context (paragraph 96 CB 199) that the Tribunal put material to the applicant suggesting inter alia that Sunni Tehreek was at the centre of anti-Christian agitation.  The applicant denied this.  I note that at paragraph 130 CB 202 the Tribunal set out country information which inter alia would suggest that Sunni Tehreek is an institution representing ultra radical anti-Christian, anti-Shi’ite beliefs. 

5. The Tribunal went on at CB 203-209 to deal with the applicant’s credibility and come to conclusions.  The Tribunal said at paragraphs 141-142 CB 203:

   “141.    By his own account the applicant admits he made false declarations in order to obtain a business visa to enter Australia, he previously had a passport which he had not initially declared and in which, by his own account, there were visas he had obtained fraudulently by giving false details.  He had claimed to be a self-employed businessman with a business associate in Australia while, in his application for a protection visa he stated he was employed as a spray painter for eleven years prior to coming to Australia. 

   142.    This gives rise to significant reservations regarding whether or not the applicant can be regarded as a credible witness and, the nature of his core claims.”

6. The Tribunal noted that there would be occasions when, due to a well-founded fear of persecution or other fear of harm, an applicant would provide false details.  The Tribunal went on, however, to observe at paragraph 145 CB 204:

   “145.    However, in the current matter the applicant has had a passport for several years and, has been able to leave Pakistan on a number of previous occasions without seeking asylum.  This therefore raises questions in regard to false information or documentation that he has used or concealed and leads me to find that he deliberately kept the details and presence of that passport to himself as it was damaging to his claim to have had to flee Pakistan in his most recent trip.  I do not accept the applicant’s claim that this was omitted because of his previous agent.  I am of the view that the agent was unaware of this passport.  I am of the view that the agent made no mention of it because he was unaware of its existence.”

7. At paragraphs 150-151 CB 204 the Tribunal said:

   “150.    The claimed reason for applying for a visa to enter Australia followed a claimed kidnapping attempt in May is false since the application for that visa was lodged in April, prior to the claimed attack.  I find that the reason for the application was for reasons other than a well founded fear of persecution in Pakistan. 

   151 As discussed below I further find that any false declarations or manipulations of his passport or visa applications were for reasons other than a well founded fear of persecution since, he was able to leave and seeks asylum but chose, instead, to return to Pakistan indicative of a lack of the claimed fear…”

8. Tribunal went on separately to consider the applicant’s claims to be a member of the Sunni Tehreek. At paragraphs 169-177 CB 206, the Tribunal dealt in detail with the country information about the Sunni Tehreek.  It stated at paragraphs 169 CB 206 and following:

   “169.    I am of the view that if, as he claimed, he had been a long-term member senior figure in Sunni Tehreek and close to the leader in 2001 and then subsequent leaders that he would have had substantial and compelling evidence in the form of documentation and references from the group. 

   170.    I am not satisfied that the applicant was a member of Sunni Tehreek from 1996 and since he has provided false material in that regard I find that he was not. 

   171.    When confronted by independent country information concerning the Sunni Tehreek he denied that it was against Mohajirs in its early days and, more surprisingly claimed that it was not anti-Christian and, indeed his branch had a Christian section in it. Given the applicant’s demonstrated ability to fabricate and give false information I prefer the independent material.”

9. While the Tribunal was prepared to the give the benefit of the doubt in regards to Sunni Tehreek opposition to Mohajirs the Tribunal did not accept that Sunni Tehreek was not anti-Christian. 

10. The significance of the anti-Christian nature of the Sunni Tehreek is apparent at paragraphs 177-179 CB 207. 

    “177.    I do not accept that there is a Christian element in Sunni Tehreek and the applicant’s claim that there is leads me to find, among other concerns, that he is not a member of the organisation and this, like so much of his other evidence is concocted to form a false set of claims for a protection visa. 

    178.    I find that the documentary evidence is fraudulent and the applicant’s claims in regard to being a senior figure or leader in the movement to be false.  His knowledge of the organisation is that which anyone in Karachi member or non-member would be aware of, and does not satisfy me that he is a member of the organisation.  Having considered the applicant’s evidence and demonstrated ability to concoct and fabricate I find he is not a witness of credit and find that he was not a member of the Sunni Tehreek.

    179.    Accordingly, I do not accept that he has been threatened or that he faces harm at the hands of Sipah-i-Sahaba or any other fundamentalist group for reasons of his membership or position in Sunni Tehreek.” 

11. Having set out yet further difficulties with the applicant’s claims at CB 208 the Tribunal, unsurprisingly in the circumstances, concluded that the applicant was not a person to whom Australia owes Convention protection nor was he a person who satisfied the complementary protection criteria.

The Tribunal’s decision overall

1. I have only given excerpts of the Tribunal’s decision.  I have set out what as a matter of impression seem some, but by no means all, of the Tribunal’s pertinent observations.  The reality is that the Tribunal’s findings were at the very least open to it and reveal nothing illogical or unsupported by evidence that was before the Tribunal.  Indeed one might feel that the Tribunal’s decision was not only open to it but almost compelled by the various inconsistencies to which the Tribunal referred.

2. Contrary to the position of the applicant announced in oral submissions, the Tribunal was entitled to rely upon the country information in its analysis of the organisation of which he had claimed to be a member.  The Tribunal’s conclusion was clearly open to it on the country information provided.

3. Furthermore, the applicant misconstrues the use to which the Tribunal put that finding.  It was the fact that the applicant claimed that there was a Christian subsection of the organisation when the material clearly showed that there was not that caused the Tribunal to doubt whether the applicant had indeed been a member of it.  This is an entirely logical approach, well and truly open to the Tribunal on the materials. 

Conclusion

1. Unfortunately for the applicant, the matters he raises are all criticisms properly categorised as merits review.  The Tribunal’s decision is not illustrative of jurisdictional error and the application will be dismissed with costs. 

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Associate: 

Date:  14 August 2014