MZZWE v Minister for Immigration

[2014] FCCA 2122

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZWE & ANOR v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 2122

Catchwords:
MIGRATION – Judicial review of decision of Refugee Review Tribunal – whether applicant accorded natural justice – whether Tribunal failed to consider evidence – transcript not supporting applicant’s criticisms – application dismissed.

Legislation:
Migration Act 1958 (Cth)

First Applicant: MZZWE

Second Applicant: MZZWF

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 2011 of 2013

Judgment of: Judge Burchardt

Hearing date: 18 July 2014

Date of Last Submission: 28 August 2014

Delivered at: Melbourne

Delivered on: 19 September 2014

REPRESENTATION

The Applicants: In person

Counsel for the First Respondent: Ms Randall-Smith

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The Amended Application filed 4 June 2014 be dismissed.

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

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

MLG 2011 of 2013

MZZWE

First Applicant

MZZWF

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introductory

1. By an amended application filed on 4 June 2014, the applicant seeks judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 25 October 2013.  The Tribunal affirmed a decision of a delegate of the first respondent not to grant the applicants Protection (Class XA) visas.  Only the first named applicant (“the applicant”) made protection claims.

2. The grounds of the amended application include denial of procedural fairness, failure to consider several evidentiary matters and an assertion that the Tribunal failed to consider whether the applicant would be personally targeted for harm because of her religion, given her very active religious practice.

3. For the reasons that follow, I do not think that these criticisms are made out and it follows that the application will be dismissed.

4. It should be noted that the applicants’ original application filed on 22 November 2013, while generalised in its terms, squarely raised an alleged natural justice point.  The grounds of application included a denial of an opportunity to comment on an issue in dispute and an assertion that the Tribunal did not give the applicant a fair hearing.  This point is worthy of note because the applicant raised it in her oral submissions before the Court.

5. The applicant’s affidavit filed contemporaneously with the original application merely appended a copy of the Tribunal’s decision.

6. It should be further noted that the amended application annexes four paragraphs under the heading “Possible Judicial Review Arguments”.  It seems highly probable that these were not written by the applicant, not least because it refers to her in the third person.  These raise what appear to be supporting arguments for each of the grounds expressed in the amended application, albeit that some of the emphasis might be thought to be slightly different.

Ground 1

“1.    The Tribunal denied me procedural fairness in relation to its finding about the demands I received to convert to Islam.”

1. The written submission annexed to the amended application makes the point that, at the second hearing of the Tribunal on 17 October 2013, there was discussion about whether the applicant had or had not earlier made comments about converting to Islam.  The Tribunal asserted at P-63 of the Transcript of the Tribunal hearings (“the transcript”):

   “5.    The other thing your husband said was that he was receiving messages and threats, telling him to convert to Islam.  Now, that has not been part of your evidence until now.  You have never said in any of you (sic) statements, or your evidence at the hearing, that the people who were contacting you or harassing you were telling you to convert to Islam.”

2. The applicant and her advisor, Ms Benjamin, took issue with this (P-63). Ms Benjamin relied on her notes, and the Tribunal member said (at P-64):

   “40.  All right…So I will accept that you said at the last hearing that you were told to convert.”

3. The Tribunal member went on to discuss how frequently such threats had been made and the applicant, in effect, said that such harassment had occurred on a number of occasions.

4. The relevant excerpt from the earlier transcript is at P-40.  It is clear that Ms Benjamin’s handwritten note was an accurate one.  What the applicant said through the interpreter was:

   “5.    So they used to say – because I was already informed by my husband, “Look, the phone has been snatched, my phone has been snatched,” so they rang me and they told me that, “Where are you?” and that I should stop working, “Stop working, you stop doing all these things, otherwise we’ll kill you, or else you convert to – you convert yourself to Muslim”.  I used to switch off the phone.  I wouldn’t listen to all these things.”

5. It should be noted that the Tribunal member asked several questions following this extract which suggest a certain measure of doubt.

6. The complaint made by the applicant’s written submissions is that, in paragraph 28 in Court Book (“CB”) 201 of the Tribunal’s decision, the Tribunal observed:

   “28.  The applicant stated at the second hearing on 17 October 2013 that she was told to convert to Islam every time she was harassed or followed in Rawalpindi, and when she was phoned in Lahore.  The Tribunal noted that she did not make this claim in her written statements or when the Tribunal specifically asked her at the first hearing, in relation to each claimed incident, what was said to her.  The applicant said she might not have told the Tribunal.  She stated that it is very common for extremists to try to force Christians to convert.”

7. The applicant’s submission, however, omits the reference to paragraph 26 of the judgment (CB200) where the Tribunal, under the heading “Threatening Phone Calls in Lahore”, recorded:

   “26.  The applicant claims that she received two threatening phone calls in Lahore at the end of May after the men who were pursuing her stole her husband and son’s mobile phones.  She stated that the caller asked where she was, told her to stop working with families or she would be killed and told her to convert to Islam.  The applicant stated that she changed her sim card and did not receive any further calls.”

8. This first extract, in my view, correctly sets out the evidence given by the applicant at P-40.

9. The alleged failure of natural justice is put in the amended Application of the applicant as:

   “Arguably this is a breach of procedural fairness in that the Tribunal’s comments in the second hearing that it would accept that Ms Joseph had mentioned the demands to convert to Islam during the first hearing may have suggested to Ms Joseph that this evidence was not in issue.  Had the Tribunal not made these comments, Ms Joseph may have been able to produce further evidence of her previous mention of these demands to convert, for example a transcript of the first hearing where it is stated clearly.”

10. In my view, the difficulty that attends this submission is that the Tribunal did, in fact, accurately record what the applicant had said.  I appreciate that paragraph 26 of the reasons of the Tribunal does not sit very comfortably or easily with paragraph 28.  To the extent, however, that paragraph 28 refers to the applicant being told to convert to Islam every time she was harassed or followed in Rawalpindi, it is clear, in my view, that the Tribunal was correct to say that such a claim had not been made in the applicant’s earlier statutory declaration or materials and was not asserted by her at the first Tribunal hearing.

11. Further, the Tribunal clearly had doubts about the applicant’s version of events which are recorded at P-40, in any event.

12. The further difficulty confronted by the applicant is that a central factual basis for the alleged utterance of these threats was roundly rejected by the Tribunal.  The Tribunal did not accept that the husband’s telephone had been stolen, as the applicant asserted, not least because the husband himself, when called to give evidence, confirmed that it had not been stolen.

13. In these circumstances, the alleged failure of natural justice is not made out.  Furthermore, it is clear that in the interchanges that took place between the Tribunal and the applicant, both on 10 October 2013 (P-40-41) and on 17 October 2013 (P-63-65), that the Tribunal put the applicant on very clear notice that this was an aspect of her evidence that was in issue.

14. In all the circumstances, in my view, this complaint is not made out.

Ground 2

“2.    The Tribunal failed to consider the evidence of my scar.”

1. The amended Application asserts that:

   “The Tribunal failed to consider (the applicant’s) evidence of the scar she received after falling over when she was being followed.  (The applicant) showed the Tribunal the scar, however there is no mention of it in the Tribunal’s decision.”

2. So far as I can see, the account by the applicant of this incident is at P-25-26.  It is clear that the applicant said that she was running and fell and got injured on her side.  It is not clear from the passage at P-25 whether the applicant actually made a physical demonstration to show where the injury was or showed the scar to the Tribunal member.

3. The written submissions of the first respondent, however, correctly record the Tribunal’s dealing with this issue (albeit somewhat in passing and obliquely) at paragraph 22 (CB200).

4. The first respondent’s submissions are also correct to point out that the global finding made at paragraph 43 (CB204) is written in terms that would encompass this claim directly.  This ground is not made out.

Ground 3

“3.    The Tribunal failed to consider the fact that I carried a bible with me when I did my christian work which drew attention to me from muslim fundamentalists.”

1. The point made in the amended Application asserts that the Tribunal made no mention of the fact that the applicant carried a Bible with her, “…arguably suggesting it did not consider this fact”.  This could be argued as a failure to consider a piece of evidence, or a failure to consider a claim, ie, the Tribunal failed to consider that the applicant was, so to speak, visibly a Christian as she walked around the neighbourhood visiting families.

2. It is certainly the case, as the first respondent’s submissions point out at paragraph 30, that the applicant’s statutory declaration (CB169 at paragraph 8) clearly mentioned the applicant walking with a Bible.

3. However, I also accept the first respondent’s submission that this sub-aspect of the evidence is at least arguably taken up by the extract of the Tribunal’s decision at paragraph 33 (CB202) where the Tribunal stated:

   “33.  The applicant stated that she was targeted in Pakistan because she had been a leader of her church group and her activities were noticed.”

4. It is also the case that the applicant’s statutory declaration was before the Tribunal, and the Tribunal was clearly aware of its terms (see paragraph 16, CB198).

5. The reality is, as the first respondent submits, that the Tribunal made comprehensive credibility findings, most particularly perhaps at paragraphs 39-43 (CB203-204) and those findings, in my view, were open to the Tribunal.  Thus, in my opinion, the failure to mention the applicant carrying a Bible is subsumed within the findings of greater generality about the applicant’s claims (see first respondent’s contentions of fact and law, paragraph 32).

Ground 4

“4.    While the Tribunal considered whether christians generally face persecution in pakistan, the Tribunal failed to consider whether I personally would be targeted for harm because of my religion given my very active religious practice.”

1. The written submissions assert that the Tribunal failed to consider an integer of the applicant’s claim, namely that she would be targeted for harm in Pakistan, not just because of the mere fact that she was Christian, but because she actively practices Christianity in Pakistan.

2. This matter may be dealt with shortly.  If one reads the Tribunal’s decision fairly and as a whole, it is clear that the Tribunal was well aware that the applicant’s claims were not just those of a Christian in Pakistan but one who was an active member of the church community, being involved in what was described as missionary work (although the Tribunal did not accept that this was the case).  The Tribunal said at paragraph 19 (CB199):

   “19.  The Tribunal accepts that the applicant attended the Sacred Heart Church.  It does not accept that she was an active volunteer at the church or that she was a leader of a group of women who visited families who were not attending church.”

3. At paragraph 39 (CB203), the Tribunal recorded:

   “39.  The Tribunal does not accept that the applicant has been targeted as claimed.  The level of harassment and threat described by the applicant is disproportional to her limited church activities; and her evidence in relation to the claimed harassment contained inconsistencies which undermine its credibility.”

4. It is clear that the Tribunal understood the applicant’s claim to fear a persecution, both as a Christian generally but also a Christian activist, in particular.

The matters asserted by the applicant in Court

1. The applicant, who represented herself, raised the points in grounds 2 and 3.  She asserted that she offered the Tribunal to view her injury but the Tribunal declined (I have not been able to identify this passage in the transcript- see paragraph 22 above).

2. The applicant went on to say that the Tribunal gave the applicant no opportunity to tell her side of the story.  She said the Tribunal did not understand what happened to her and that she wanted a second opportunity to just tell her side of the story.  She referred to the possibility of misunderstandings and the difficulties in recounting her experience.

3. Essentially, the rest of the applicant’s oral submissions were repeats of matters already asserted on her behalf or matters relating to Christians in Pakistan, generally.  She went on to say towards the end of her oral submissions that whatever she wanted to say was not heard and she further made criticisms of the country information the Tribunal relied on.

4. Because the applicant seemed to me to be making an allegation that she was not fairly heard at the Tribunal at all, I made an order for the transcript to be obtained and forwarded to the parties.  Only the first respondent took the opportunity I provided them to provide written submissions within 21 days of the receipt of the transcript.

5. In my view, the hearing before the Tribunal seems to have all the hallmarks of acceptability.  The Tribunal took a break after a period of time (P-30) and acceded to a request to call her husband in Pakistan (P-52).

6. At P-57, during the currency of the telephone call to the husband in Pakistan, the Tribunal asked the advisor if there were any other questions that ought to be put and acceded to a request to raise another matter.  The proceeding was adjourned to a date to suit the advisor (P-58).

7. The Tribunal put doubts it had developed about the applicant’s evidence to her in terms on the resumption of the hearing on 17 October 2013 (P-61).  The Tribunal member additionally gave the applicant time to consult with her advisor before hearing final submissions (P-68).

8. I appreciate that the Court does not have an audio recording of the hearing to listen to.  Nonetheless, when reading the transcript, there is absolutely nothing to suggest that the applicant was simply not given an opportunity to express herself or not given a fair opportunity to be heard.  To my mind, the transcript suggests that the Tribunal was perfectly properly conducting an inquiry as the Migration Act requires and it is impossible, in my view, on these materials, to make out the applicant’s assertions of unfairness.

Conclusion

1. The applicant’s two statutory declarations were clearly considered by the Tribunal, and because of the way the appeal has been structured, I have not, as I often otherwise do, traversed the material in the Court Book in any great detail.

2. The criticisms made are precise and the responses to them, therefore, can be foreshortened.

3. Nonetheless, I should make it clear that I have read the entirety of the Court Book and it seems to me that the way in which the Tribunal dealt with the materials before it demonstrates that the Tribunal understood the task it was required to perform and arrived at conclusions that were at least open to it.  There were a number of significant credit issues in this application and, most unfortunately for the applicant, they were decided against her.

4. In the circumstances, the applicant’s assertions of jurisdictional error are not made out and the application must be dismissed with costs.

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Judge Burchardt. 

Associate: 

Date:  19 September 2014