SZKEJ v Minister for Immigration
[2007] FMCA 838
•17 May 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKEJ v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 838 |
| MIGRATION – Credibility a matter for the Tribunal – not act on evidence inconsistent with facts incontrovertibly established by evidence – reliance on decision of first Tribunal – s.424A letter put to applicant’s agent – in effect sent to applicant – whether documents from Pakistan were fake. |
| Migration Act 1958 (Cth), ss.424A, 474 |
| Selvadurai v Minister for Immigration and Multicultural and Indigenous Affairs (1994) 34 ALD 347 W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703 Abalos v Australian Postal Commission (1990) 171 CLR 167 Yao-Jing Li v Minister for Immigration and Multicultural Affairs (1997) 74 FCR 275 Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437 Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214 |
| Applicant: | SZKEJ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 428 of 2007 |
| Judgment of: | Turner FM |
| Hearing date: | 17 May 2007 |
| Date of last submission: | 17 May 2007 |
| Delivered at: | Sydney |
| Delivered on: | 17 May 2007 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the Respondents: | Ms. V. McWilliam |
| Solicitor for the Respondents: | Ms. S. Kantaria of Clayton Utz |
ORDERS
The application is dismissed.
The applicant is to pay the costs of the first respondent fixed in the amount of $4,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 428 of 2007
| SZKEJ |
First Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application filed on 9 February 2007 for an order to show cause why a remedy should not be granted in respect of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 28 December 2006 which affirmed the decision of the delegate for the Minister for Immigration and Multicultural Affairs not to grant the applicant a protection visa. The applicant has not filed an amended application but has made submissions to the Court in support of his application.
The applicant was born on 1 January 1974 and claims to be from Pakistan and of Sunni Islamic faith.
The applicant’s wife and two children remain in Pakistan.
The applicant arrived in Australia on 28 August 2004 and lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs on 5 October 2004. In this application he claimed that when he arrived in Australia he had no intention of seeking asylum, but has since been wrongly accused of being involved in a murder and embezzlement in Pakistan. The applicant claimed that he was the local Area President of the Pakistan Muslim League and believes that the charges were laid against him because he had attended a meeting “in the past” at the house of a former minister. The applicant claimed that he was arrested and confined for 13 months and 9 days because “the Government didn’t want us to hold this meeting”. The applicant claimed that he was arrested a second time after being accused of holding a meeting with “plans blasting the Government” (CB 25-7).
This application was refused by a delegate of the first respondent on
22 October 2004 (CB 32-42) and by the Refugee Review Tribunal on review on 23 February 2005 (CB 75). An application for review of the Tribunal’s decision was then lodged with the Court, and on
8 September 2006 the Court remitted the matter to the Tribunal to be determined according to law (CB 87).
On 28 December 2006 the Tribunal, differently constituted, affirmed the decision of the Minister’s delegate refusing to grant the applicant a protection visa. In considering the applicant’s claims, the Tribunal found (CB 186-9) (highlighting added):
The Tribunal accepts the applicant’s evidence, including his passport, and finds that he is a national of Pakistan.
The applicant’s claims may be summarized as follows:
The applicant was the area President of the Muslim League. He was arrested for holding a political meeting as he was the local leader. This occurred ‘after 1999’ and he was beaten and detained for 13 months and nine days. He was then brainwashed. Upon release he had to attend the police station once a week. (He later stated that the reporting once a week commenced after the 2003 election, or after September 2003.) The police came to his home to check his presence and sometimes came at late hours and were insulting and abusive. In August 2002 (or January 2002) the police raided his home and he was arrested because he had plans to hold a meeting ‘blasting the Government.’ He denied this. He was released after 13 days with a warning. He sent his brother to the police station to say he was sick and could not attend, and his brother was searched and money was taken from him.
The applicant has been wrongly accused of embezzling three million rupees of the Government’s money in relation to a contract for the completion of sewerage works; this case is registered against him with a charge to pay back the 3 million rupees. This embezzlement case has been ongoing since December 1998. He was charged in 1999. In 2004 all the files were gathered together and the authorities started troubling him. He was taken away, and at times he was held for 1-2 days. He was also wrongly accused of the murder of a man on 23 September 2003 at the time of the council election. He was charged with murder in 2004, when the people who were originally charged were turned against him by the authorities and implicated him, thus exculpating themselves. The applicant found out about the two cases being registered against him when he rang his family after he arrived in Australia on 28 August 2004. The matters in the First Incident Reports relating to these two charges have been given to all the police stations in the Punjab and Lahore, and to the Lahore court. The applicant has lived all of his life at the address in Sialkot in Pakistan; his wife and two children are living there although because of the trouble, sometimes his wife goes to her mother’s place but she then returns. She is tortured because of him. If he were to return to Pakistan, he will be arrested and placed in detention.
The Tribunal accepts that the applicant was the Sialkot area President of the PML-N.
It is reasonable that an applicant whose claims are plausible and credible should, unless there are good reasons not to do so, be given the benefit of the doubt (UNHCR Handbook on Procedures and Criteria for Determining Refugee Status, Re-edited, Geneva, January 1992, paras. 196‑197 and 203‑204). However, it is appropriate that the Tribunal assess the specific claims advanced in support of an applicant's case, bearing in mind that:
A decision‑maker does not have to have rebutting evidence available before he or she can lawfully hold that a particular factual assertion by an applicant is not made out.
(Selvadurai v The Minister for Immigration and Ethnic Affairs and Refugee Review Tribunal, Heerey, J, (1994) 34 ALD 347 at 348). While the Tribunal accepts that, as observed by Gummow and Hayne JJ in Abebe v The Commonwealth (1999) 197 CLR 510, it is hardly surprising that applicants for refugee status may yield to the temptation to embroider their accounts (at paragraph 190), however, for the reasons that follow, the Tribunal does not accept the applicant’s claims that he has suffered, or has a well-founded fear of persecution.
At the first hearing before the Tribunal the applicant stated he was beaten and detained for thirteen months and nine days, and thereafter he had to attend the police station once a week. At the second hearing, he stated that he was put in gaol for the 13 month period after 1999, but before 2002. This means that he started attending the police station once a week during the period 1999-2002. However, the applicant stated at the second Tribunal hearing that he started reporting to the police on a weekly basis after the 2003 election (i.e. December 2003). He then stated that he was told to start reporting from September 2003. The Tribunal finds that the information provided by the applicant as to when he started reporting once a week is inconsistent. It is an important part of his evidence, and if the claim were true he would not have given an inconsistent account. Because of that, the Tribunal finds that the applicant is not a credible witness. This finding is supported by the following findings.
At the hearing before the first Tribunal the applicant stated that he was required to report to the police 2-3 times a week. In his Application for a Protection visa he stated that he was required to report once per week. In response to the s424A letter the applicant stated that he was required by the Police order to attend the Police Station once a week. However, the Police used to call him whenever they liked. So, during the interview he tried to aggregate his attendances to the Police Station. The Tribunal rejects this explanation and finds that the applicant gave inconsistent answers and tried to exaggerate his claims.
The applicant did not mention that he was detained more than twice in his Application for a Protection visa. At the hearing before the first Tribunal he stated he had been arrested a third time. In response to the s424A letter the applicant stated that he was arrested three times, but on the third occasion he was detained in the Police Station only. The Tribunal finds that the applicant’s evidence is inconsistent in this matter and it does not accept his explanation.
The First Information Report states that the murder occurred on 6 November 2003, whereas the applicant stated at the second hearing that it occurred on 23 September 2003. The Tribunal finds the applicant’s evidence to be inconsistent in this regard.
In his Application for a Protection visa the applicant stated at Questions 47 and 48 that he left Pakistan legally and did not have any difficulties obtaining a travel document (such as a passport). He arrived in Australia on 28 August 2004. The applicant’s evidence at the second hearing and elsewhere indicates that he had at least one claim of embezzlement outstanding against him at the time, and he was also reporting on at least a weekly basis to the police. He also claimed to have been charged with murder, and the FIR dated 6 November 2003 stated that he was the murderer on 6 November 2003. He was also a member of PML-N. Country information indicates that an Exit Control List was used in the period the applicant departed Pakistan, in order to prevent the departure of wanted criminals and individuals under investigation for defaulting on loans, corruption and other offences (see USDOS 2003 and 2004). The applicant stated that all the information under the ECL was provided to the police, courts and politicians, but not the airport. The Tribunal rejects this as the applicant was unable to provide a cogent reason as to how he knew this was the case.
The Tribunal finds that the independent country information states that someone with the applicant’s claimed profile of being charged with murder, and who was required to report once a week to the police and was charged with embezzlement, would be prevented from departing Pakistan. The Tribunal finds that having regard to the country information, which the Tribunal accepts, the applicant’s ability to leave Pakistan indicates that he was of no adverse interest to the authorities. The Tribunal finds that the applicant cannot be believed and it is not prepared to accept that any of his claims are true, except where specifically found otherwise.
In making this finding, the Tribunal accepts all the country information set out above that it is easy to obtain fake, fraudulent or bogus documents in Pakistan, and they are prevalent. As a result of this information, which the Tribunal accepts, and the previously discussed inconsistency between a document and the applicant’s evidence, the Tribunal does not accept that the applicant’s documents are a reliable corroboration of the applicant’s claims.
The Tribunal does not accept the applicant’s claims that he has suffered persecution in Pakistan.
As a result, the Tribunal is not satisfied that the applicant faces a real chance of persecution should he return to Pakistan now or in the foreseeable future.
Therefore the Tribunal is not satisfied on the evidence before it that the applicant has a well-founded fear of persecution for any Convention related reason.
Accordingly, the Tribunal is not satisfied that the applicant is a refugee.
Having considered the evidence as a whole, the Tribunal is not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Therefore the applicant does not satisfy the criterion set out in s.36(2) for a protection visa.
The applicant then filed the application in this Court, seeking judicial review of the Tribunal’s decision pursuant to Migration Act 1958 (Cth).
The decision of the Tribunal is based on adverse findings of credibility against the applicant and a rejection of much of his evidence. The Tribunal set out its reasons for rejecting each piece of evidence.
The Court refers to and adopts the following passage from W148/00A vMinister for Immigration and Multicultural Affairs (2001) 185 ALR 703 at [64]:
The tribunal decision turned on the question of credibility. 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. As the High Court stated in Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479; 112 ALR 641 at 646 per Brennan, Gaudron and McHugh JJ:
If the trial judge’s finding depends to any substantial degree on the credibility of the witness, the findings must stand unless it can be shown that the trial judge “has failed to use or has palpably misused his advantage” or has acted on evidence which was “inconsistent with facts incontrovertibly established by the evidence” or which was “glaringly improbable”.
See also Abalos v Australian Postal Commission (1990) 171 CLR 167 at 179; 96 ALR 354. This latter case was concerned with the scope for review of a decision founded in part on demeanour where the court at first instance had an opportunity to observe witnesses and form an impression as to the reliability of evidence given in response to questioning. Often a conclusion as to the credibility of a witness will depend not only on the body language and general impression conveyed by a witness in the way in which questions are answered but also on a careful consideration of the factual background or available information, coupled with ordinary experience as to likely patterns of response. Such an impression cannot be communicated by consideration of the transcript alone.
The Court finds nothing to indicate that the Tribunal acted on evidence that was inconsistent with facts incontrovertibly established by the evidence on which was glaringly improbable, or that the Tribunal failed to use its advantage or palpably misused its advantage. The Court does not find that the probabilities of the case are against the adverse findings on credibility. There are no grounds for the Court to set aside the findings on credibility; those findings must stand.
The application
In his application, the applicant set out four grounds as follows:
(1)The Tribunal relied on the previous RRT decision with much information without giving the applicant opportunity to comment upon the information given to the Tribunal before and during the interview which give rise to breach of s.424 of the Migration Act.
(2)Whilst the Tribunal has leeway as to how the provided information is interpreted, the decision involves jurisdictional error affecting the decision as the Tribunal has erroneously adopted the approach that generally documents obtained from Pakistan are fake. The Tribunal could have checked the authenticity of the documents from the issuing agencies through Australian overseas post.
(3)The Tribunal has erred in failing to make enquiry to the adequacy of the applicant’s claim that he was arrested, detained and gaold (sic jailed) for considerable period of time.
(4)The Tribunal has erred in making findings that the documentary evidence provided is fake and fail to take into account matters within jurisdictional facts and erroneously failing to consider such facts.
The applicant has not filed an amended application.
Findings as to the grounds in the application
Ground one alleges a breach of s.424 (which the Court understands to mean “s.424A”) of the Migration Act in the second Tribunal relying on the decision of the first Tribunal without putting such information to the applicant for comment. The Court accepts the submission for the first respondent that the reason for the second Tribunal’s decision was that the Tribunal did not believe the applicant’s claim. Insofar as the Tribunal relied on the decision of the first Tribunal, the Court refers to CB 187-8 where the references to the first Tribunal are set out. It is clear that the material referred to was supplied by the applicant for the purposes of the application and therefore subject to the exception in s.424A(3)(b). The conclusions reached by the Tribunal are not “information” covered by s.424A: SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214 at [205] – [206].
Court Book 187 (last paragraph) refers to evidence before the first Tribunal as to how often the applicant was required to attend the police station. That issue was put to the applicant for comment in the s.424A letter in paragraph 3 (CB 146). Court Book 188 (paragraph 2) refers to evidence before the first Tribunal that the applicant was required to report to the police 2-3 times a week. That information was put to the applicant in paragraph 3 of the s.424A letter. Court Book 188 (paragraph 3) refers to evidence before the first Tribunal that the applicant had been arrested a third time. That issue was put to the applicant in paragraph 2 of the s.424A letter. It is not apparent that any other information relating to the first Tribunal was relied on by the second Tribunal as a reason for its decision.
The s.424A letter was sent to the applicant at 12 Myers Street, Roselands NSW 2195, which was very similar to the address provided by the applicant (CB 44), and at 14 Geonaroi Street, Villawood NSW 2163. The letter was returned marked “return to sender”. On 4 December 2006 Mr Michael Haynes, an officer of the Department, contacted Mr Ejaz Khan who confirmed that he was acting for the applicant in the matter and was awaiting correspondence from the Tribunal. Mr Khan asked Mr Haynes to send him the various correspondence by facsimile (CB 151). Mr Haynes did this on the same day. The Court holds that sending the s.424A letter to the applicant’s agent was in effect sending it to the applicant.
Mr Khan replied on behalf of the applicant on 9 December 2006 (CB 156). Mr Khan stated that he received one page of the letter of
21 November 2006 (the 424A letter, CB 146) and responded to paragraphs 1, 2 and 3. Mr Khan therefore acknowledged receipt of the page of the 424A letter which contained the information relevant to the first Tribunal hearing. The Court notes that the applicant confirmed that Mr Ejaz Khan was his authorised recipient in his response to hearing invitation dated 9 December 2006 (CB 158). The Court finds that the relevant information was sent to the applicant’s agent pursuant to s.424A. The Court finds no breach of s.424A. Ground one is rejected.
Ground two complains that the Tribunal should not have found that generally documents obtained from Pakistan are fake without checking. The Tribunal found at CB 188.10 that
it accepts all the country information set out above that it is easy to obtain fake, fraudulent, or bogus documents in Pakistan, and they are prevalent. As a result of this information, which the Tribunal accepts, the Tribunal does not accept that the applicant’s documents are a reliable corroboration of the applicant’s claims.
Those findings of fact where properly open to the Tribunal on the material before it and are not open to review.
Further, the applicant must “satisfy the Tribunal that all statutory elements are made out”: Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 144 ALR 567. As stated by the Tribunal in various decisions (Case No. N99/29216 and N05/51049):
Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making (Yao-Jing Li v MIMA (1997) 74 FCR 275 at 288), the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant’s case for him or her: Prasad v MIEA (1985) 6 FCR 155 at 169-70; Luu & Anor v Renevier (1989) 91 ALR 39 at 45. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: Randhawa v MIEA (1994)) 52 FCR 437 at 451.
The Court accepts those propositions as correctly stating the law. The Tribunal was under no duty to enquire: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at 43. Ground two is rejected.
Ground three complains that the Tribunal failed to make enquiries about the applicant’s claims that he was arrested, detained and jailed. The Tribunal was not under a duty to enquire. The applicant has not established this ground No error has been shown. Ground three is rejected.
Ground four complains about the Tribunal’s findings as to fake documents and “failed to take into account matters within jurisdictional facts and erroneously failing to consider such facts.” Insofar as the ground refers to fake documents, the Court refers to its findings under Ground two. The remainder of the ground is not particularised and no explanation of it was provided to the Court. The Court finds that part of the ground is meaningless and not established. Ground four is rejected.
The applicant submitted to the Court that the Tribunal misunderstood his evidence regarding his attendance at the police station. Information about his attendance at the police station was put to the applicant in the s.424A letter dated 21 November 2006 at CB 146. Paragraph number 3 of that letter states that:
At the hearing before the first Tribunal you stated you were required to report to the police 2-3 times a week. In your Application for a Protection visa you stated you were required to report once per week.
The reply from the applicant’s representative is contained at CB 156-7. In paragraph number 3 of that letter it is stated:
The applicant instructed us that he was required by the Police order to attend Police Station once a week. The Police use (sic) to call him whenever they like. During the interview he tried to aggregate his attendances to the Police station.
At CB 188.2 the Tribunal referred to the applicant’s attendances at the police station and to the inconsistency between his information before the first Tribunal (that he was required to report 2-3 times a week) and the information in his protection visa application (that he was required to report once per week). The Tribunal rejected the applicant’s explanation. That is a finding of fact by the Tribunal that was properly open to it on the material before it. The evidence by the applicant was not misunderstood; the evidence was rejected. This ground is rejected.
The other matters raised by the applicant in Court seek to alter findings of fact by the Tribunal. The findings sought to be contested were properly open to the Tribunal on the material before it and are not subject to review by this Court.
Conclusion
The Court finds that the Tribunal’s decision is a privative clause decision, and has not been infected by jurisdictional error. In such circumstances, and pursuant to s.474 of the Act, there is no jurisdiction for this Court to interfere.
Accordingly, the application is dismissed.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Turner FM
Associate: Sarah James
Date: 31 May 2007
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