SBHD v Minister for Immigration
[2006] FMCA 557
•6 April 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SBHD v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 557 |
| MIGRATION – Review of RRT decision – where applicant deserted ship – where applicant converted to Christianity − where RRT did not accept applicant’s evidence − whether punishment for desertion falls within law of general application − whether applicant’s conversion from Islam to Christianity whilst in Australia fell within s.91R – whether unsuccessful claim for asylum in Australia falls within Convention ground of imputed political opinion – whether religious conversion falls within Convention ground. |
| Migration Act 1958, s.91R(3) Federal Magistrates Court Rules 2001 |
| SAAP v Minister for Immigration [2005] HCA 24 SZDFO v Minister for Immigration [2004] FCA 1192 Kamal v Minister for Immigration [2002] FCA 818 Minister for Immigration Ex Parte: Durairajasingham [2000] 168 ALR 407 |
| Applicant: | SBHD |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | ADG42 of 2006 |
| Judgment of: | Raphael FM |
| Hearing date: | 6 April 2006 |
| Date of last submission: | 6 April 2006 |
| Delivered at: | Adelaide |
| Delivered on: | 6 April 2006 |
REPRESENTATION
| For the Applicant: | In Person |
| Counsel for the Respondent: | Mr M Roder |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
Application dismissed.
Applicant to pay the respondent’s costs assessed in the sum of $4,250.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADG42 of 2006
| SBHD |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of Pakistan. He arrived in Australia in August 2005 and on 22 August 2005 applied for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs. On 7 September 2005 a delegate of the Minister refused that application. On 12 September 2005 the applicant lodged a request for a review of the delegate's decision with the Refugee Review Tribunal. The applicant attended a hearing together with a representative and called a witness. On 14 November 2005 the Tribunal determined to affirm the decision not to grant a protection visa.
The applicant's claim to protection in Australia arose in the following way. He told of coming from a district in the north-west frontier province of Pakistan in which religious and Jihadi organisations flourished. He told the story of frequent requests for payment by the Jihadi organisations to his father. He told of similar requests for money being made to him after he had returned from voyages on ships in which he had worked as a seaman.
The applicant said that after a casual meeting with a Christian convert, he decided that by converting himself to that religion he might avoid the demands of the Jihadis and so he told them that he had converted, as a result of which he says a fatwa was issued against him. The applicant had not taken much in the way of steps to envelop himself in Christianity whilst he remained in Pakistan. But in August 2005 he jumped ship in Fremantle and, following his arrest and detention, had turned to the Christian religion and attended services. The witness whom he called was a Catholic worker who regularly visited the detention centre and spoke of the applicant's attendance and wish to understand more about the Christian religion.
The applicant claimed that if he was returned to Pakistan he would suffer persecution for his conversion to Christianity and because of the bad relations engendered by that act with the Jihadi organisation. He also suggested that he would be subject to some form of persecution because he had jumped ship in Australia and had made an unsuccessful application for a protection visa. The Tribunal examined all these matters in some detail at the hearing and provided the applicant with a lengthy and well-reasoned decision. The Tribunal came to the conclusion, after hearing the evidence and considering the post-hearing submissions, that it was not able to accept the applicant's evidence about his dealings with Jamaat-e-Islami nor did it believe his story of his encounter with the Christian convert or that thereafter he had considered himself to be a Christian. The Tribunal did not believe the evidence given by the applicant, that he had telephoned the Jamaat-e-Islami organisation and told them of his conversion and therefore found that any claims related to his conversion to Christianity in Pakistan could not sustain a well-founded fear of persecution.
The Tribunal then turned to the effect of the applicant's alleged commitment to Christianity whilst in Australia. It correctly referred to its obligations to consider the matter in the light of s.91R(3) of the Migration Act 1958 (the “Act”) which reverses the onus so that a Tribunal must disregard any conduct engaged in by a person in Australia unless it is satisfied that the person engaged in the conduct otherwise than for the purpose of strengthening the person's claim to be a refugee. The Tribunal spoke to the witness and asked her questions about the applicant's conversion. He noted that in response the witness said:
"The applicant had expressed a desire to become a Christian and a Catholic but that he did not know very much about it at all so they had not yet begun formal instruction. ... The applicant's representative asked the witness if in her view the applicant's interest in Christianity was genuine. She said that in the very short time she had known him she believed it was but she repeated that he knew very little about Christianity. She said that she believed that this interest was genuine but that time would tell.”
The Tribunal indicated that it was not satisfied from this evidence that the applicant's interest in Christianity occurred other than for the purposes of strengthening his claim to be a refugee.
The Tribunal also considered the claims made by the applicant of possible persecution on his return to Pakistan because he had made an application for asylum and because he had jumped ship. The Tribunal rightly pointed out that any prosecution in respect of jumping ship was a prosecution in respect of a law of general application and that he did not consider that such a prosecution could be seen to be convention related. As to the other claim the Tribunal considered certain independent country information from the UNHCR and satisfied itself that the applicant would not stand a real chance of persecution merely because he had sought asylum or because he had claimed a conversion in his asylum application. The Tribunal noted that if the applicant returned to Pakistan voluntarily no problems would arise at all but if he was deported, the Pakistani authorities would make inquiries as to whether or not he had violated any Pakistani laws. The UNHCR information indicated that there was not a real chance that he would be accused of breaching blasphemy laws if he returned to Pakistan now or in the foreseeable future.
It will be seen from the matters set out above that the Tribunal thoroughly considered all the aspects of the applicant's claim. Because the applicant is unrepresented, I examined the court book to see whether or not there was any suggestion that the Tribunal may have fallen into jurisdictional error in the way in which it reached those conclusions. I was particularly concerned as to matters of the type raised by the High Court in SAAP v Minister for Immigration [2005] HCA 24 but have been unable to find any. I have received no assistance from the applicant, either in his application, which merely states that there is jurisdictional error, or from what he has said to me today. This is not to be critical of the applicant whose knowledge of English is limited and his understanding of what may or may not constitute a jurisdictional error is probably no greater than the average Australian in the street, which knowledge would be almost minuscule. The applicant did address me about the problems he thought he might face if he did return to Pakistan and it is probably well that I should make reference for his benefit to the role of the Court in this type of proceedings as set out by his Honour Allsop J, in SZDFO v Minister for Immigration [2004] FCA 1192:
"[8] The structure of the legislation, being the Migration Act and in particular s.474 of that Act, as interpreted by the High Court in Plaintiff S157 of 2002 v Commonwealth (2003) 211 CLR 476 only entitles the Federal Magistrates Court or this Court to interfere with what the Tribunal has done if there is found to be what is referred to as jurisdictional error.
[9] What that means is as follows: the error to be demonstrated as committed by the Tribunal must be one that reveals a failure to carry out its statutory task. That is, it must be shown that the statutory authority and duties placed upon the Tribunal have not been complied with. Examples of that kind of error are as follows: that the Tribunal has misunderstood the correct question that it should be dealing with; that the Tribunal has failed to deal with the claims as they are put by the applicant; that the Tribunal has failed to afford the applicant procedural fairness in the way it dealt with the matter; that the Tribunal failed to take into account a consideration the law made compulsory to consider; and that the Tribunal took into account a consideration that the law made compulsory not to consider.
[10] These are the main examples. Conformably with High Court authority, factual error is rarely reflective of jurisdictional error. There may be circumstances where findings of fact are such as to demonstrate that the Tribunal has misunderstood its task. There may be circumstances where the findings of fact are so irrational or capricious as to display a failure of the Tribunal to attend conscientiously and appropriately to its statutory obligations.
[11] Within the kinds of boundaries that I have just identified the findings of fact and the assessment of evidence is a matter for the Tribunal in the exercise of the executive power. The Parliament has chosen not to permit the courts to review factual material beyond the proper confines of identifying jurisdictional error. It is against that legal background that the appellant needs to understand the reasons for the disposition of his appeal.”
It is also appropriate that I explain to the applicant that findings of credibility are matters for the Tribunal. As Mansfield J said in Kamal v Minister for Immigration [2002] FCA 818 at [36]:
"It is not for the Court, on reviewing a decision of the Tribunal, to form its own views as to whether it would have given the perceived inconsistencies the significance attributed to them by the Tribunal, or upon any such view to conclude that the Tribunal's assessment of the applicant's claims should not have been made. Those evaluative processes are for the Tribunal.”
As McHugh J said in Minister for Immigration Ex Parte: Durairajasingham [2000] 168 ALR 407 [at 67]:
"A finding on credibility is the function of the primary decision maker par excellence. If the primary decision maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness should not be believed. The Tribunal must give the reasons for the decision, not the subset of reasons why it accepted or rejected individual pieces of evidence.”
It is fair to say that in this case the Tribunal gave very comprehensive reasons why it rejected the applicant's evidence. Those reasons do not seem to me to have been brought into being by way of jurisdictional error. I dismiss this application. I order that the applicant pay the respondent's costs which I assess in the sum of $4,250.00.
I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Raphael FM
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