SBKD v Minister for Immigration - [2006] FMCA 556

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SBKD v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 556

MIGRATION − Review of RRT decision − where applicant deserted ship – where applicant converted to Christianity from Islam – 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)

SAAP v Minister for Immigration [2005] HCA 24

Applicant:

SBKD

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

ADG47 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

ADG47 of 2006

SBKD

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS 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. On 23 August 2005 he made an application for a protection (Class XA) visa from the Department of Immigration and Multicultural and Indigenous Affairs. On 8 September 2005 a delegate of the Minister refused that application. The applicant sought review of the decision of the delegate from the Tribunal on 16 September 2005. The applicant was represented by a firm of migration agents and solicitors and he attended a hearing with the Tribunal in October 2005. His representatives filed papers on his behalf, including a witness statement. On 14 November 2005 the Tribunal determined to affirm the decision not to grant the applicant a protection visa.
The applicant bases his claim to the protection of Australia on the following matters. He is a seaman who came originally from the North-West Frontier province of Pakistan. He told of a history of extortion and attempted extortion by groups of Jihadists directed at his family and himself, both before he left to go to sea and when he returned from voyages. He came to the conclusion that if he changed his religion he would be able to resist the demands of these extortionists and so, having spoken casually with a person allegedly of the Christian faith, he told the Jihadists that he was a Christian.
The applicant said that this did not provide much comfort to him because the Jihadists then considered him to be an apostate and threatened to kill him. Shortly after these occurrences, the applicant left his home village for Karachi where he had, in the past and at that time, spent a considerable period of time. He found work on a ship which eventually came to the port of Fremantle where he jumped ship, later to discover that five other persons, two of whom have already appeared before me today, had the same intention as him. They also had a very similar story to tell.
Upon his going into detention the applicant took more interest in the Christian religion and regularly attended services on a Thursday. He was able to obtain assistance by way of a letter of support from a Catholic sister working at the detention centre.
The applicant claimed that if he returned to Pakistan he would be found out by the Jihadists and persecuted or killed for what he had done whilst in Pakistan. He also claimed that he would be the subject of persecution because of his apostasy from Islam and he would be subject to persecution from the Pakistani authorities because he was a failed asylum seeker returning to his country of origin.
The Tribunal dealt with all these matters in a thorough and well-reasoned manner. It is quite clear that the Tribunal, like myself, had before it more than one case of almost identical claims by persons of identical names in identical circumstances and it would have been easy for the Tribunal to have failed to take important matters into consideration purely because of the repetitive nature of the stories coming before it. But the Tribunal did not do that. In each case it thoroughly examined the claims being made. It considered all the possible grounds upon which asylum could be sought and discussed with the applicant all those matters about which a properly instructed Tribunal would need to be informed.
At [CB 148 and 149] the Tribunal made its conclusions evident. It said:
"I do not accept that the applicant's claimed fear that either AG or AA have told authorities or people in Pakistan that he has been attending church in Australia has any objective foundation in fact. Having regard to the findings I made above, I do not accept that the applicant has a well-founded fear that he will be persecuted because of his claimed conversion to Christianity or because he will be perceived as having converted to Christianity if he returns to Pakistan now or in the reasonably foreseeable future. Since I do not accept that the applicant has converted to Christianity, I do not accept there is a real chance that he will be persecuted by being unable to practise his Christian faith freely in Pakistan nor that there is a real chance that he will be persecuted for apostasy or for having committed actions deemed derogatory to Islam or for blasphemy, as submitted by his representative.
I accept that while working on board ships the applicant drank alcohol, watched movies and engaged in an affair with a Filipino Australian girl which continued even after his marriage. However, apart from the obvious hurt which this caused to his wife the applicant does not claim that he had any other problems as a result of having become "accustomed to a western lifestyle" when he returned to his home in the North West Frontier Province. When I asked the applicant about such problems at the hearing before me he referred to his fear that somebody would rob him but he does not claim that he was robbed. He said that he had to drink in secret so that nobody could see him doing so but he claims he was able to drink with his friend JM in a park. I do not accept there is a real chance that the applicant will be persecuted because of any perception he has become accustomed to a western lifestyle as a result of the time he spent working on board ships or the time he has spent in detention in Australia if he returns to Pakistan now or in the reasonably foreseeable future.
The applicant also claimed in the statement prepared by his representative that the fact that he had applied for a protection visa would cause him to suffer harm on return to Pakistan. As I put to the applicant in the course of the hearing before me, the information available to me indicates that if he returned to Pakistan voluntarily he will have no problems at all because he is a failed refugee claimant. If he is deported and handed over to the Pakistani authorities they will make inquiries to determine whether he has violated Pakistani laws. As I put it to the applicant, however, UNHCR in Islamabad advised in June 2003 that generally no punitive action was taken against failed refugee claimants.”
The Tribunal then goes on to discuss the possible problems that the applicant might face as a deserter from his ship. But it notes that those problems are problems which apply to any person who has deserted a ship and are therefore laws of universal application and not covered by the Refugee Convention. The Tribunal was satisfied that the applicant would not be treated differently from any other ship deserter returning to Pakistan by reason of any political opinion imputed to him on account of having applied for refugee status in Australia.
The Tribunal's views expressed above arose out of its testing of the applicant's claims and concluding that they were not credible due to the existence of identified inconsistencies and exaggerations, as well as an absence of any real knowledge of Christianity. The Tribunal considered the provisions of s.91R(3) in regard to the applicant's actions in attending Christian worship at the detention centre and it considered certain representations made by his advisers that another ship jumper had returned to Pakistan and they had given information about him to the authorities.
This hearing is not an appeal against the Tribunal's decision. It is not necessary for me to rehearse in detail every claim made by the applicant and every view about it given by the Tribunal. I have dealt with the most important of these but having done so I must say that there was no evidence available to me from my reading of the decision and my perusal of the court book that would indicate any suggestion that in coming to the conclusions which it did the Tribunal fell into jurisdictional error. I have not been assisted in any way by the applicant whose application provided no grounds other than "jurisdictional error". I do not blame the applicant for this. It cannot be easy for a person in his position to articulate his complaints about a sophisticated concept such as jurisdictional error.
In my consideration of the papers I looked particularly for the possibility of a claim that the Tribunal had fell into error in relation to those matters referred to by the High Court in SAAP v Minister for Immigration [2005] HCA 24 but in all cases the inconsistencies pointed out by the Tribunal between statements and what the applicant said were between statements provided directly to the Tribunal by his advisers and not statements provided to the delegate.
In all the circumstances, I have been unable to find any grounds upon which this Tribunal could be said to have fallen into jurisdictional error. I dismiss the application. I order that the applicant pay the respondent's costs which I assess in the sum of $4,250 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: