SZINQ v Minister for Immigration

[2009] FMCA 469

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZINQ v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 469

MIGRATION – RRT decision – Pakistani claiming persecution as Shia Muslim – disbelieved by Tribunal – no jurisdictional error established – application dismissed.

Migration Act 1958 (Cth), s.91(R)(3)(b)

Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559
Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425
SZMDS v Minister for Immigration & Citizenship [2009] FCA 210

Applicant: SZINQ

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 79 of 2009

Judgment of: Smith FM

Hearing date: 11 May 2009

Delivered at: Sydney

Delivered on: 11 May 2009

REPRESENTATION

Counsel for the Applicant: Applicant in person

Counsel for the First Respondent: Ms A Mitchelmore

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application is dismissed. 

2. The applicant must pay the first respondent’s costs in the sum of $4,300. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 79 of 2009

SZINQ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The applicant came to Australia in September 2005, and applied for a protection visa on 21 October 2005.  A brief typed statement explained his claim to fear persecution if he returned to his country of nationality, Pakistan. 

2. He claimed to come from a village in Sialkot District where one tenth of the population were Shia Muslims and the remainder Sunni.  He referred to an incident in 2003, when the Shia congregation was fired upon and “four people and two kids were killed”.  Police did not arrest anybody after that incident.  He also referred to a second incident “this year”, when 200 people led by the Sunni leader were armed with guns and machetes and threatened to attack the Shia congregation again.  His statement said:  “few of us brought their guns from nearby homes and fire bullets on the procession.  As a result, six people were killed and several injured”.  The applicant was arrested with his father and brothers for their murder, but he was released and discharged from the case after spending six months in gaol.  He claimed that the Sunni leader had filed a petition in the District Court challenging this outcome, and “I ran away from Pakistan with the help of an agent and do not wish to go back.  I believe that if I go back the Sunny people will kill me or Court case if decided in their favour would put me in jail for whole life”.  No support for these claims was provided to the Department of Immigration. 

3. A delegate refused the application on 22 November 2005.  The delegate noted information that sectarian conflict occurs in Pakistan between Sunni and Shia Muslims, and that the Shia minority “continued to be disproportionately the victims of individual and mass killings”.  The delegate said that the law enforcement agencies in Pakistan were trying to enforce law and order, and that this suggested the availability of effective protection.  The delegate also said that the applicant’s delay in travelling from Pakistan after obtaining a visa and in applying for protection in Australia was an indication “that his fear of persecution is neither genuine nor significant”. 

4. The applicant appealed to the Refugee Review Tribunal.  He was initially unrepresented, but in the last two proceedings before the Tribunal he has been represented by a solicitor.  The Tribunal has now made four decisions reviewing the applicant’s refugee claims, the first three of which being set aside by consent orders in this Court. 

5. The decision of the most recent Tribunal was made on 15 December 2008.  It appears to me from the Tribunal’s statement of reasons that it carefully reviewed all the evidence which had been presented to the Tribunal by the applicant over the course of the whole review proceeding.  The Tribunal said that it had given consideration to the recordings of hearings held by the first, second and third Tribunal members, as well as the applicant’s evidence to the fourth Tribunal member at a hearing held on 24 October 2008.  A description of the applicant’s earlier evidence and his evidence at the fourth hearing is contained in the statement of reasons, and I have no reason not to accept the accuracy of that description.  No transcripts of the hearings have been put into evidence, although I note that at least in relation to the fourth hearing a recording was sent to the applicant’s solicitor.  The applicant has not tendered a transcript of that hearing. 

6. From the Tribunal’s description of the fourth hearing, the present Tribunal member discussed with the applicant a number of concerns arising from the applicant’s evidence, and it sought to test the claims he had made, including in documents which had been forwarded to the second Tribunal.  These included documents concerning the death of the applicant’s brother from gunshot injuries in 1998, and a first information report by the applicant’s father concerning “two unknown accused persons” who injured his son “when he was praying”.  The documents also included letters on letterhead certifying that the applicant had worked for Shia associations in Pakistan, and had been attacked after the death of his brother eight years previously.  A witness statement suggested that the applicant was now attacked by a false case and left the country because persons of an extremist Sunni organisation were threatening to kill him.  Another document dated 1994 purported to corroborate that the applicant was the vice‑president of an organisation in his district, which the applicant identified to the Tribunal as an association, which I shall refer to as “TEJ”. 

7. The present Tribunal member questioned the applicant about his claim to have been a Shia Muslim.  It sought to test this claim by inquiring into his knowledge of the differences between the practices and background of Shia Muslims and Sunni Muslims.  The applicant had told earlier Tribunal members, and told this member, that he had been attending prayer at a Sunni mosque in Sydney, and this was put to him also as being a matter which might point against his claim.  The Tribunal also put to the applicant concerns about the claims raised by the documents concerning the death of his brother, and the pursuit of him by an extremist Sunni group.  It sought to test his claimed involvement in the TEJ and detected very significant gaps in his knowledge of that association, as well as other matters pointing against that claim. 

8. The Tribunal questioned the applicant about the claim in the statement attached to the visa application that the applicant in 2005 had been arrested and held for six months.  The Tribunal noted that, if this was true then he had obtained his passport and visa during the period of his imprisonment. 

9. According to the Tribunal, at the end of the hearing it summarised its significant concerns: 

   70.I put to the applicant that I had great difficulty accepting that he was telling the truth.  I had difficulty accepting that he was a Shia Muslim because he did not appear to know anything about the Shia faith.  I had difficulty accepting that he had been involved with the [TEJ] because he did not appear to know anything about the [TEJ].  I noted that at the hearing before the second Tribunal he had said that he had not belonged to a political party.  I put to the applicant that the [TEJ] was a political party and it had participated in elections (DFAT cable IS2618, dated 11 June 1997, CX23252; (International Crisis Group, The State of Sectarianism in Pakistan, 18 April 2005, page 4).  I put to him that if he had been a vice‑president of the party in District Sialkot, as he claimed, he would know this.  I put to the applicant that I also had difficulty accepting the claims he had made about the incident in 2005.  The applicant responded that whatever he was telling was not wrong. 

10. It appears to me that earlier in the course of the hearing the Tribunal’s questions had also probably put the applicant on notice about various matters of concern to the Tribunal, upon which it later based its findings. 

11. Under the heading “Findings and Reasons”, the Tribunal identified three areas of the applicant’s evidence supporting its general conclusion that “there are good reasons not to accept that he is telling the truth in relation to his claims for refugee status”. 

12. The Tribunal said that “he does not appear to know much about the Shia religion”.  It gave reasons for this assessment comparing his evidence with general information about the origins and practices of the Shia branch of Islam. 

13. The Tribunal noted that the applicant had been attending a Sunni mosque in Sydney, and it said that he should be aware of differences in prayer between the two branches, if indeed he were a Shia Muslim worshipping at a Sunni mosque. The Tribunal expressly addressed whether it could take into account this conduct in Australia, and made a finding in terms of s.91(R)(3)(b) of the Migration Act 1958 (Cth) which had the consequence that it was not required to disregard the conduct.

14. The Tribunal also relied on a defect in the applicant’s evidence to a previous Tribunal member, where he erroneously identified the frequency with which Shia Muslims pray.  The applicant corrected his mistake before the present Tribunal, but it was not persuaded by his explanation for his earlier inaccurate knowledge. 

15. The second area of the applicant’s evidence which the Tribunal identified in its reasons for finding the applicant not to be a credible witness, concerned his evidence about his association with TEJ or a related association.  This claim was purportedly corroborated by documents forwarded to the Tribunal and receipts showing payments to that body in 1992 and 1995.  The applicant had claimed that this was a religious association, and that he had been a “religious cleric” in the association.  However, the Tribunal’s general information about the association was that since 2002 it had become involved in political activities, and it had participated in elections and become part of government at one time.  The applicant was unaware of this background, and of other aspects of the association which, in the Tribunal’s opinion, reflected upon the genuineness of his claims of involvement in it. 

16. The third area where the Tribunal identified defects in the applicant’s evidence supporting its general conclusion about his credibility was his evidence about the attack by a Sunni group on Shia Muslims in 2005.  The applicant gave inconsistent evidence to the present Tribunal, by alleging that it was the Sunnis and not the Shias who had fired shots causing death. 

17. The Tribunal expressly addressed the documents presented by the applicant.  It said that it had considered them, but “I give greater weight to the view I have formed of the applicant’s credibility than I do to these documents.  I do not consider that these documents outweigh the problems I have with the applicant’s own evidence”. 

18. The Tribunal concluded by applying its general rejection of the applicant’s credibility to reject all the essential elements in his claim to fear persecution if he returned to Pakistan.  The Tribunal concluded that it did not accept that there was a real chance that the applicant would be persecuted for a Convention reason if he returned to Pakistan. 

19. The applicant now asks the Court to set aside the Tribunal’s decision and to remit the matter for further consideration.  I have power to do this only if the Tribunal’s most recent decision was affected by jurisdictional error.  I do not have power myself to decide whether the applicant is a refugee or should be believed, nor whether he qualifies for any permission to stay in Australia. 

20. The applicant relies on arguments which have been presented in his original application.  Although given the opportunity, he has not filed an amended application, written submissions or any additional evidence to that contained in the Court Book. 

21. The grounds set out in the application are: 

    1.The Refugee Review Tribunal made a jurisdictional error by failing to consider the applicant’s claims: 

    Particulars 

    a.The Tribunal failed to discharge its obligations to make a finding as to whether or not the Applicant would be persecuted if returned to his country of nationality instead made subjective assessments. 

    b.The Applicant’s claims were considered by three different members of the Tribunal and all three Members made three different findings as to the Applicant’s same claims. 

    2.The Refugee Review Tribunal made a jurisdictional error by heavily relying on the information obtained by its own resources and assuming the Applicant’s evidence to be irrelevant. 

    Particulars 

    a.The Tribunal incorrectly examined the issue of the Applicant’s inability in finding Shiite Mosque in Sydney and assumed the Applicant’s claims to be not credible. 

    b.The Applicant’s evidence was partially accepted by the Tribunal but benefit of any ambiguity was not given to the Applicant.  The Tribunal accepted Sunnis are in majority in Pakistan, post‑mortem report of the Applicant’s brother who was shot and killed in communal violence etc, but failed to take into account the Applicant’s claims to be a Shiite at all. 

    3.The conduct of the Second Respondent was such that a fair‑minded lay person properly informed of the nature of the proceeding and the matters in issue might reasonably apprehend that the Second Respondent might not bring an impartial mind to the resolution of the questions to be decided by it. 

22. In relation to the first Ground, in my opinion the Tribunal did consider all the applicant’s evidence and his claims.  I do not understand the argument that it “made subjective assessments” as a ground of jurisdictional error.  It was the duty of the Tribunal to form its own opinion about the merits of the matter, putting out of its mind the factual assessments previously made by earlier Tribunal members, and I am satisfied on the evidence that it did this. 

23. If the attack on “subjective assessments” is a contention that the Tribunal’s decision was reasoned in such an unreasonable or irrational manner as to show no real or genuine exercise of jurisdiction, then I can find no evidence to support that contention (compare SZMDS v Minister for Immigration & Citizenship [2009] FCA 210 and the cases cited therein). The fact that earlier or different members may have made different factual findings cannot provide, in itself, evidence of jurisdictional error affecting the most recent decision. The applicant has not taken me to any aspect of the earlier decisions which would illustrate or demonstrate irrationality or unreasonableness on the part of the present Tribunal.

24. As I have indicated, it is clear in terms of procedural fairness that the present Tribunal member amply drew to the applicant’s attention the significant areas where he might be disbelieved by that member, and I would not find that he was denied an opportunity to meet those concerns. 

25. I therefore am not persuaded by any of the contentions made in Ground 1. 

26. Ground 2 proceeds on a mis‑description of the Tribunal’s decision.  The Tribunal did not “assume the Applicant’s evidence to be irrelevant”.  Indeed, it properly put at the forefront of its review an assessment of the truth of the applicant’s evidence.  It was open to the Tribunal to determine that issue, in part, by testing the applicant’s evidence against pertinent general information.  I can detect no part of the procedures or reasoning of the Tribunal in this respect which reveals jurisdictional error. 

27. The particular criticism of the Tribunal for relying upon an implication drawn from the applicant’s attendance at the Sunni mosque in Sydney is misconceived.  In fact, the Tribunal drew upon his attendances only to explain its assumption that the applicant should be very well aware of the differences between Sunni and Shia practices in prayer, if indeed he had attended regularly the mosques of both branches in the course of his life.  This was a point, in my opinion, which was rational and open to the Tribunal.  The Tribunal’s reliance on this point, as only one of many numerous reasons which the evidence presented to the Tribunal for disbelieving the applicant, revealed no jurisdictional error. 

28. The contention in Particular b of Ground 2 that the Tribunal failed to give the applicant “benefit of any ambiguity” is not explained.  On established authorities, it was open to the Tribunal to rest its decision on a clear opinion as to the credibility of the claims made by the applicant (see particularly, Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559). Since the Tribunal made such confident findings about the applicant’s credibility, it was not obliged to consider the hypothesis that it was wrong in its assessment.

29. Considered by reference to principles of jurisdictional error and the Tribunal’s statement of reasons, the argument that the Tribunal “failed to take into account the Applicant’s claims to be a Shiite at all” becomes only a contention that the Tribunal made the wrong decision in fact on the applicant’s credibility.  If it made such an error, it was not jurisdictional error. 

30. The contention in Ground 3 that the Tribunal’s decision was vitiated on principles of apprehended bias, which were explained by the High Court in Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425, is not explained in the ground, nor has it been explained by the applicant in any written or oral submissions. On the evidence before me it lacks any foundation. The fact that the Tribunal ultimately arrived at an adverse finding about the applicant’s credibility shows that it performed its duty, and not that it had a closed mind before it made its decision.

31. The applicant today did not present arguments to explain the grounds of his application.  After counsel for the Minister explained how the Tribunal had decided the case, the applicant made submissions maintaining the truth of some of his claims and disputing the assessments of the Tribunal.  However, I could not identify any contention of jurisdictional error in what the applicant said to me. 

32. For the above reasons, I am not satisfied that the Tribunal’s decision was affected by jurisdictional error.  I must therefore dismiss the application.  

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:  Lilian Khaw

Date:  25 May 2009