SBFD v Minister for Immigration - [2007] FMCA 386

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SBFD v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 386

MIGRATION – Review of RRT decision − where the applicant claimed a fear of persecution following his refusal to make payment to a religious organisation − where the Tribunal did not find the applicant’s claims to be credible − where the Tribunal considered the applicant could have evaded the persecution if he had moved to a different part of the country − whether this consideration was a separate issue of which the applicant should have been notified at the hearing − whether the refusal to make the payment was a matter in issue of which the Tribunal did not inform the applicant − whether the Tribunal’s reasons are illogical.

Migration Act 1958, ss.424,425

SZBEL v Minister for Immigration [2006] 231 ALR 592

Applicant:

SBFD

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG487 of 2006

Judgment of:

Raphael FM

Hearing date:

9 March 2007

Date of Last Submission:

9 March 2007

Delivered at:

Sydney

Delivered on:

23 March 2007

REPRESENTATION

Counsel for the Applicant:

Mr D Godwin

Solicitors for the Applicant:

Parish Patience

Counsel for the Respondents:

Mr J Smith

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

Application dismissed.
Applicant to pay the respondent’s costs assessed in the sum of $5,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG487 of 2006

SBFD

Applicant

And

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicant is a citizen of Pakistan. He was a seaman plying between Australia and other countries in the region. In August 2005 he and others jumped ship and, after being arrested on their way from Fremantle to Melbourne, applied for a protection (Class XA) visa on 22 August 2005.
On 6 September 2005 a delegate of the Minister declined to grant a protection visa. On 9 September 2005 the applicant applied to the Refugee Review Tribunal for review. The Tribunal invited the applicant to attend a hearing which he did on 17 October 2005. On 14 November 2005 the Tribunal affirmed the decision not to grant a protection visa and advised the applicant, who was then in immigration detention.
The applicant’s claim that he was a person to whom Australia owed protection obligations centred around his fear of returning to Pakistan after he had declined to make a payment to a religious organisation in his home village in Northwest Frontier Province, and in doing so had renounced Islam. There was some subsidiary claims made by the applicant relating to his having embraced Christianity but these were dismissed by the delegate and by the Tribunal and were not the subject of the application for review in this court. The applicant had told the delegate, who appears to have heard his case along with that of his fellow ship jumpers, that he had been required to make regular payments to the religious organisations under threat of physical violence or being sent on Jihad if he declined. The delegate dealt with the matter at pages 5 and 6 of his reasons [CB 50 – 51]:
“The Applicant states that he fears he may be killed if he returns to Pakistan.
The reason I don’t want to go back to Pakistan is that the situation there is very tense. Over there Islamic organisations are sending people by force to Afghanistan and Kashmir for jihad.
From the ship I used to earn a lot of money. This was taken by force for these religious organisations. That’s why I refused Islam and accepted the Christian faith.
I rebelled against jihad, then they sentenced me to death. The government in Pakistan cannot protect me or help me.
I accept that it is possible that the applicant and his fellow deserters did not wish to give a large proportion of their pay to these groups, and accept the possibility that they had pressure put on them to do so. However, given that very many people in the region are unemployed or survive by subsistence farming, I do not accept that the applicant would have been or will be sent on jihad when he was and is able to provide a relatively substantial sum to these organisations each time he returned home. The other deserters in the same group as the applicant all came from the same area. They also stated that they and their brothers and fathers (any of them) had not been forced to go on jihad. All were expected to pay according to their ability. When I asked what would happen if they did not pay, some of the applicants admitted they would not be killed, but they might be harassed until or unless they did pay.
I find that should the applicant return to Pakistan, that he would be expected to continue to support the religious organisations in the area and could expect to be chastised or harassed if he did not do so. However I do not accept that the Applicant, even in this situation, would suffer any real harm or persecution.
Although North West Frontier Province is recognised as having many fundamentalist Islamic religious leaders, it is clear that the Pakistan government is seeking to control this type of “extremism”.”
When the applicant appeared before the Tribunal these matters were taken up at T7:
“Q37.      You’ve mentioned the Lashkar-e-Toiba as well.
A(Int)     Yeah, that’s correct.
Q38.       I understand they were also harassing you on occasion.
A(Int)     Yeah, that’s correct.
Q39.So were any other of these Jihadi organisations involved to your knowledge?
A(Int)Al Islamic parties all the same.
Q40.But I’m interested in the ones that you claim were harassing you, asking for money and asking you to go and train for Jihad.
A(Int)     I don’t know about others these parties used to insist me to join them.
Q41.       By these parties you mean the Jamaat-e-Islami and the Lashkar-e-Toiba?
A(Int)     Yes.
Q42.You say that from 1999 and 2005 each time you returned to your village from working on board ships you had these problems with these organisations.
A(Int)     Yeah, I used to pay them money as well.
Q43.You say that each time they asked you for money and each time you paid them.
A(Int)     Yeah, that’s correct.
Q44.       You say that in April 2005 you refused to pay them.
A(Int)     That’s correct.
Q45.And you also say that you told them that you were no longer a Muslim.
A(Int)That’s correct..
Q46.So what changed between the previous occasions when you always paid them and April 2005 which made you change your mind?
A(Int)Actually, I used to think that if I earned some money I should spend it for my parents and for my family, why should I pay them from my hard earned money..
Q47.       What made you change your mind in particular in April 2005?
A(Int)Two, three people came to my place and I was asked for money but I refused from Islam and I went somewhere else.
Q48.What I’m interested in, Mr Applicant, is that you say that over quite a number of years you’d always paid them without problems and then in April 2005 you decided not to pay them.
A(Int)Actually, I was tortured too much for this money and that’s why I decided how long should I be paying..
Q49.And can you tell me why you told them that you were no longer a Muslim?
A(Int)Only because I was tortured by them.
Q50.So what do you mean when you say you were tortured by them?
A(Int)I was not happy with this, I was not happy with the Muslims. They always force people to join them and join the Jihad and that’s why I decided to – decide not to join them.
Q51.Did you, for example, think that if you were no longer a Muslim they would no longer ask you for money?
A(Int)No. Actually, I used to like this religion.
Q52.You say that a Fatwa was issued against you and your village. You say that a Fatwa, a religious order, was issued against you and your village.
A(Int)Yeah, that’s correct. They ordered to hang me because I declined Islam.
Q53.You say that you were able to escape these organisations by going to another village and then to Karachi.
A(Int)Yeah.
Q54.Why do you consider that you could not remain safely in Karachi, for example?
A(Int)Actually, Jamaat-e-Islami has got a big hand in Karachi.
Q55.Do you think that they would pursue you there?
A(Int)Yeah, I was actually waiting for a job and since I got the job on ship I just flee from there.
Q56.But why do you think that the people from the Jamaat-e-Islami in your own home area in the North-West Frontier Province would pursue you in Karachi?
A(Int)Actually, they can do anything any part of Pakistan, they’re such a big organisation and that’s why I was scared of them.
Q57.I accept that they exist as a political party all over Pakistan, by why is it that you think that the people who had been bothering you and harassing you in your village would pursue you to Karachi?
A(Int)There was a fear in my heart and that’s why I was trying to escape from one place to another and I reached Karachi.”
In its findings and reasons at [CB 166] the Tribunal states:
“In the present case, for reasons given below, I do not accept the Applicant’s evidence that he told two members of the Jamaat-e-Islami in April or May 2005 that he was no longer a Muslim, that he refused to keep paying them money and that he would not go for Jihad. By the Applicant’s account he and his father had been forced to contribute to both the Jamaat-e-Islami and the Lashkar-e-Taiba for a number of years. He left his home village in January 1999 and he has worked for shipping companies based in Karachi off and on since about September 1999 but between the periods he spent working on board ships he has always returned to his home village. At the hearing before me I asked the Applicant why he had considered that he could not remain safely in Karachi. The Applicant said that Jamaat-e-Islami had a big presence in Karachi. He said that they could do anything in any part of Pakistan because they were such a big organisation and this was why he was scared of them.
As I indicated to the Applicant, I accept that the Jamaat-e-Islami exists as a political party all over Pakistan but I do not accept that the Applicant’s claimed fear that the people who he claims were harassing him in his village would pursue him to Karachi has an objective foundation in fact. The Applicant said in the statement set out in his representative’s statutory declaration that he had gone to Karachi initially in January 1999 and that he had got a job with ‘Macknan & Mackenzie Shipping’ in about September 1999. He does not claim that he was ever harassed by the Jamaat-e-Islami or other Jihadi groups in Karachi. He claims he was harassed and asked to contribute money for Jihad when he went back to his home village. The Applicant does not suggest that he ever attempted to evade the members of the Jamaat-e-Islami or the Lashkar-e-Taiba – the two organisations which he said were causing him problems – by moving to Karachi, where the shipping companies for which he worked are based. I do not accept on the basis of the evidence before me that the Applicant objected to contributing to these Jihadi organisations as he claims. I consider that if he had objected to contributing to them he could have moved to Karachi but he did not do so.” Emphasis added
The applicant argues that as he was not put on notice by the Tribunal that his failure to move to Karachi at an earlier time was going to be a critical issue in the review the Tribunal fell into jurisdictional error; SZBEL v Minister for Immigration [2006] 231 ALR 592. He argues that the assertion that his account was not plausible because he had not moved to Karachi at an earlier time to avoid having to make the payments was not put to him for his comments in the course of the hearing. It was a different issue in the review from the conclusion of the delegate that the applicant could escape persecution in the future by going to any locality outside his own province.
In SZBEL the High Court noted that the applicant in his statutory declaration had described three elements of his account which the Tribunal was later to find implausible. All these matters were referred to by the delegate but in his reasons the delegate “dealt directly with only one of the three elements of present importance in the appellant’s account of the events preceding his jumping ship” at [13].
In its reasons for decision the Tribunal returned to these three points and noted that it considered all of them implausible:
“[20] These three points, "[c]onsidered collectively", led the Tribunal "to reject the [appellant's] claim that the Captain of the ship was intending to hand the [appellant] over to the authorities of Iran on the ship's return to Iran because of the [appellant's] religious inclinations". It was on this basis that the Tribunal concluded that it did not accept that the appellant "was considered by the Iranian authorities to be an apostate or actively involved in Christianity prior to his arrival in Australia".
[21] The detailed exposure by the Tribunal of its reasoning processes was not criticised and represented in itself a praiseworthy method of fulfilling the duty to give reasons. The question is whether the issues to which those reasoning processes were directed had been adequately notified to the appellant.”
From [33] the High Court discusses what is meant by the phrase in s.425 of the Act “the issues arising in relation to the decision under review.”
At [35] the court says:
“The Tribunal is not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the Tribunal. But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are "the issues arising in relation to the decision under review". That is why the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision….”
After the court discussed two of the matters in contention that were put before the delegate but not commented upon it said:
“[43] The delegate had not based his decision on either of these aspects of the matter. Nothing in the delegate's reasons for decision indicated that these aspects of his account were in issue. And the Tribunal did not identify these aspects of his account as important issues. The Tribunal did not challenge what the appellant said. It did not say anything to him that would have revealed to him that these were live issues. Based on what the delegate had decided, the appellant would, and should, have understood the central and determinative question on the review to be the nature and extent of his Christian commitment. Nothing the Tribunal said or did added to the issues that arose on the review.”
The court gave some guidance as to what is required of a Tribunal and that it is not necessary to put to an applicant that he or she may be lying. At [47] the court said:
“[47] But where, as here, there are specific aspects of an applicant's account, that the Tribunal considers may be important to the decision and may be open to doubt, the Tribunal must at least ask the applicant to expand upon those aspects of the account and ask the applicant to explain why the account should be accepted.”
The respondent seeks to distinguish this particular case from SZBEL by saying in his written submissions:
“[7] In this case, all that was before the delegate was a statutory declaration dated 22 August 2005 which contained very few details of the applicant’s claims. In addition to this the applicant was interviewed by the delegate at which time he stated his claim was that he could not return because of the Islamic organisations and that they would send him on a Jihad: CB50.4
[8] The delegate rejected both the claim that the applicant would be sent on Jihad and that he had converted to Christianity: CB51. It was only after the applicant had applied to the Tribunal for review and obtained new representation that his claims took on any detail at all.”
And at [10]:
From this brief survey of the circumstances of the applicant’s application for review it is clear first that the continued payments of money to the Jihad organisation was not an issue even raised before the delegate and so the delegate’s failure to address it did not give rise to any entitlement, absent comment, by the Tribunal, to proceed on the basis that it was likely to be accepted. In other words, it was not entitled to accept that it was not in issue before the Tribunal.”
The difference between the delegate’s view of events and that of the Tribunal seems to be that while both accepted that payments had been made in the past the delegate made no positive finding there had not been a refusal by this applicant to make a payment that resulted in a Fatwa. The delegate appears to have thought it could have happened but the threats did not amount to real harm or persecution. On the other hand the Tribunal thought it didn’t happen for the reasons given, namely the fact that the applicant had not moved to Karachi before anything happened. The Tribunal reasons that because there was no refusal to pay, there was no Fatwa, there was no commitment to act against Jihadi organisations. It was this lack of antipathy towards the Jihadis that meant there was no real chance that the applicant would be persecuted for reasons of his real or imputed political opinion based upon that opposition if he returned to Pakistan now or in the foreseeable future.
It seems to me that the refusal to pay money to the Jihadis was a new issue that had not been identified by the delegate. In regard to that matter the question is whether the Tribunal challenged what the applicant said, expressed reaction or invited him to amplify those matters that it later found to be “implausible”: SZBEL at [3]. It would appear that that matter was raised fairly and squarely by question 46 when the Tribunal asked the applicant:
“So what changed between the previous occasions when you always paid them and April 2005 which made you change your mind?”
And again at question 47:
“What made you change your mind in particular in April 2005?”
And finally at question 48:
What I am interested in Mr Applicant is that you say that over quite a number of years you always paid them without problems and then in April 2005 you decided not to pay them.”
Whilst the answers given by the applicant are not entirely responsive it cannot be said that the applicant would not have been able to comprehend from those questions that the refusal of payment was a matter in issue. This would appear to meet the requirements set down by the High Court that:
“Where an issue arose at the Tribunal hearing that was not an issue before the delegate it was encumbant on the Tribunal to identify that issue and to tell the applicant of it SZBEL at [35]”
as explained by Bennett J in Applicants S1266 of 2003 v Minister for Immigration [2006] FCA 1771 at [47].
The applicant also argues that the reason given for not accepting his account of what occurred in his home village was an example of illogical reasoning not based on findings or inferences of fact supported by logical grounds. The Tribunal’s argument was that if the applicant really did not want to pay the Jihadis any more money he would not return home and would remain in Karachi until the next boat. Whilst this may appear to be an unreasonable request to make of a young man who has a wife and children as well as parents, and no doubt other family, in his home village to which he has always returned it is not necessarily irrational. Mr Smith for the respondent argues that:
“Where someone objects to doing something and has an option of doing something to avoid having to do it the fact that they do not take the avoiding action is probative of the fact that the thing objected to did not exist.”
This argument is convincing even if the reasoning it supports is not.

In the circumstances I am unable to find that the Tribunal fell into jurisdictional error in the manner in which it made its decision in this case. I dismiss the application and order that the applicant pay the respondent’s costs which I assess in the sum of $5,000.00.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Raphael FM.

Associate:

Date: