SZBXG v Minister for Immigration

[2004] FMCA 234

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBXG V MINISTER FOR IMMIGRATION [2004] FMCA 234

MIGRATION – Review of RRT decision – where applicant made false claims as to his nationality at initial interview – where applicant’s claim for protection based on convention ground of religion – where Tribunal rejected assertion that applicant has engaged in acts of blasphemy – whether Tribunal, despite this finding, was obliged to consider seriousness of penalties for the alleged actions of the applicant – whether findings of credibility open to Tribunal on the evidence.

Migration Act 1958, s.424A

MIEA v Wu Shan Liang (1996) 185 CLR 259
Kamal v MIMIA [2002] FCA 818
W148/00A and MIMIA [2001] FCA 679

Applicant: SZBXG

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SZ 2467 of 2003

Delivered on: 15 April 2004

Delivered at: Sydney

Hearing date: 15 April 2004

Judgment of: Raphael FM

REPRESENTATION

For the Applicant: Applicant in Person

Counsel for the Respondent: Ms R Pepper

Solicitors for the Respondent: Blake Dawson Waldron

ORDERS

1. Application dismissed.

2. Applicant to pay the respondent’s costs assessed in the sum of $4,750 pursuant to Part 21 Rule 21.02(2) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 2467 of 2003

SZBXG

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. The applicant in this matter was an unauthorised boat arrival in December 1999.  At that time he claimed to be a citizen of Afghanistan.  On 31 January 2000 he lodged an application for a protection (class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs.  He was granted a subclass 785 (temporary protection) visa on 26 June 2000.  On 28 June 2000 he applied for a subclass 866 (protection) visa.

2. Subsequent to these events, the department came into possession of material which convinced it that the applicant was not a citizen of Afghanistan but was a citizen of Pakistan.  The subclass 785 visa was cancelled, however this did not prevent the application for the subclass 866 visa proceeding.  That visa was also refused by the delegate of the Minister on 29 July 2003 and on 4 August 2003 the applicant sought review of that decision from the Refugee Review Tribunal.

3. The applicant attended a hearing before the Tribunal on 22 September 2003. At that hearing the Tribunal brought to the attention of the applicant pursuant to s.424A Migration Act 1958, that it had before it all of his evidence to DIMIA and to the RRT presented in the course of the present application and all his other applications, including the claims as reported in the record of his initial DIMIA "compliance" interview.  The applicant was given time to make further submissions in response to adverse material and that was done on 14 October 2003.  The Tribunal took into consideration all those matters.

4. The applicant's claim to have a well-founded fear of persecution for the convention reason of religion is said to arise out of the fact that he became an apostate from the Islamic religion.  He says that this occurred over a period of time but finally his father took issue with him about the matter and in some type of public ceremony, disinherited him.  His father allegedly published a notice in a local newspaper to the effect that he had been disinherited as a result of apostasy.  The applicant feared the severe reprisals that are contained in the Pakistani criminal code for apostasy and revenge from his own family.

5. The Tribunal considered in some detail the applicant's claims and evidence with respect to blasphemy and its views are found between [CB 616] – [CB 620], [CB 624] – [CB 625] and [CB 629].  It rejected the claims of the applicant and made findings of fact that in essence, he had concocted his alleged acts of blasphemy and rejection of Islam and fabricated his evidence in support in this regard [CB 626].  Having found that there was no evidence that any blasphemy had been committed by the applicant, the Tribunal came to the view that it was not satisfied that he faced a real chance of convention related persecution in Pakistan [CB 627].

6. It is the Minister's submission that the factual conclusions of the Tribunal were open to it on the mass of conflicting claims and incongruous evidence that the applicant presented.  Although the applicant argued before me today that the Tribunal had not considered the very serious repercussions and penalties for findings of blasphemy in Pakistan, that is not the case.  These matters were considered by the Tribunal at [CB 505] and [CB 617] – [CB 618].  What the applicant failed to understand was that the Tribunal found that no blasphemy had occurred and therefore the seriousness of the penalties was an irrelevant matter.

7. Before me today the applicant stated that he had informed the Tribunal that his father had disinherited him because he insulted the Holy Prophet but complained that the Tribunal did not listen to him.  He complained that the Tribunal did not give him an opportunity to inform it of how people get killed "in these issues" and how people even kill their own sons and daughters if they get involved in religious disputes.  He stated that if you insult someone they will take revenge and greater revenge is taken if a person insults the religion.  He says that his family beat him up and broke his hand. 

8. The matters referred to above are matters of fact.  It is not suggested by the applicant that the Tribunal ignored evidence that he gave to it.  The complaint really is about the conclusions which the Tribunal came to having heard everything that the applicant had to say.  That is not a matter which this court can delve into.  As Kirby J said in MIEA v Wu Shan Liang (1996) 185 CLR 259 at 292:

   “The decision maker will usually have advantages over the reviewing judge in evaluating evidence and submissions.  Those advantages will include the conventional ones of seeing any parties and witnesses who are heard and having time to reflect upon all of the material.  But there are additional reasons for restraint and resistance to any temptation to turn a case of judicial review into, effectively, a reconsideration of the merits.  Often, the decision maker will have more experience with the consistent application of applicable administrative rules to achieve fairness to a wider range of people that typically come before the courts.”

9. The Tribunal came to the views concerning the applicant's credibility based upon a number of matters, including the fact that he consistently lied to the department and to previous Tribunals concerning his nationality.  The courts have consistently held that matters of credit are matters for the Tribunal "par excellence" as the full court said in Kamal v MIMIA [2002] FCA 818 at [36]:

   “ It is not for the court, on reviewing a decision of the Tribunal, to form its own view 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 have not been made.  Those evaluated processes are for the Tribunal.”

   And as the full court said in W148/00A and MIMIA [2001] FCA 679:

   “A finding as to credibility is a finding of fact and, as the authorities indicate, a reviewing body must not set aside such a finding simply because it thinks that the probabilities of the case are against, or even strongly against, the finding.”

10. It seems to me that the submissions made by Ms Pepper on behalf of the Minister and so capably contained in her written document should be accepted.  The findings to which this Tribunal came were clearly open to it.  The Tribunal gave the applicant an opportunity to respond to adverse material and it did not reject his allegations about the seriousness of the conduct which he alleged he was involved in.  However, once it had concluded that the applicant was not involved in that conduct, the whole claim fell away.

11. I dismiss this application. I order that the applicant pay the respondents costs, which I assess in the sum of $4750 pursuant to Part 21 Rule 21.02(2)(a) Federal Magistrates Court Rules.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date: