SZLBC v Minister for Immigration - [2008] FMCA 181

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLBC v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 181

MIGRATION – RRT decision – Pakistani applicant claiming persecution by Sunni extremists – disbelieved by Tribunal – no procedural unfairness established – findings open on the evidence – application dismissed.

Migration Act 1958 (Cth), s.425

SZBEL v Minister for Immigration& Multicultural & Indigenous Affairs (2006) 228 CLR 152
WAKK v Minister for Immigration& Multicultural & Indigenous Affairs [2005] FCAFC 225

Applicant:

SZLBC

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2151 of 2007

Judgment of:

Smith FM

Hearing date:

11 February 2008

Delivered at:

Sydney

Delivered on:

11 February 2008

REPRESENTATION

Counsel for the Applicant:

In Person

Counsel for the First Respondent:

Mr T Reilly

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2151 of 2007

SZLBC

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

The applicant came to Australia in June 2006 from Pakistan, and applied for a protection visa on 12 July 2006. His application was accompanied by a brief statement, which said that his mother had been a Shia Muslim by religion, and that he “bend towards practising Shia religion.” He claimed that his cousin was a big financial supporter of Shias in his district, and “become very famous social worker.” In June 2003, his cousin was shot when walking in the bazaar, and two people were eventually convicted for the murder in 2005. He claimed that the murderers had also sought to kill him, but he had not been at home. The murderers later threatened the applicant and his family, and made him the subject of false police reports, with the objective of forcing his cousin's family to “sign affidavit for forgiveness of their men” so that they could get a release from prison and sentencing. He claimed to have relocated to Lahore to avoid their threats. His visa application was not supported by any details or corroboration of these claims.
A delegate refused the application on 18 September 2006. The delegate's reasoning is problematic, but pointed to the absence of evidence to support the claims, as well as noting an inconsistency in the visa application.
The applicant appealed to the Refugee Review Tribunal, and attended a hearing held by it on 19 December 2006. At the hearing and subsequently, he presented some documents in corroboration of his claimed history. They included some country information not specifically about the killing of his cousin, but confirming that the persons who the applicant claimed to fear, the members of the SSP, were known violent proponents of Sunni supremacy in Pakistan. They also included statements by an advocate, by his wife and by some supporters; and two police forms. All of these documents show a certain similarity in expression, and in their repetition of some of the claims made by the applicant.
In its decision, handed down on 19 June 2007, the Tribunal affirmed the delegate's decision. It identified the claims made by the applicant, and referred extensively to country information concerning the situation in Pakistan, and in particular, concerning the SSP.
The Tribunal accepted generally the background situation relied upon by the applicant, but was not satisfied that the applicant was “a witness of truth” in relation to his own claimed history. It identified statements in three of the documents given to the Tribunal which were contradicted by the applicant's own evidence to the Tribunal. It also identified inconsistencies within the applicant's evidence to the Tribunal, and implausibility in some parts of his claims. It concluded:
As I am satisfied the applicant has created his claims in order to obtain the visa sought I reject the totality of his evidence. I find that the applicant’s cousin was not murdered by SSP supporters because he was a Shi’a, I find that no court action was commenced or pursued through the courts by the applicant or his aunt and I find that the applicant did not go into hiding because he was threatened by SSP supporters.
As I do not accept the applicant is a witness of truth and as I do not accept that the applicant’s high profile Shi’a cousin was murdered by the SSP and as I am satisfied the applicant has created his claims I find that the applicant is not Shi’a and was not imputed to be Shi’a or imputed to be a half Shi’a half Sunni. As I do not accept the applicant is Shi’a or half Shi’a I find that he did not hold functions to support Shi’a, alone or with his cousin, or that he worked for his cousin. As stated above I find that the applicant was not detained by the police in relation to false gun offences in 2004 for 3 days. I find that the applicant was not verbally or physically harassed by the SSP or anyone else and there were no death threats against the applicant by the SSP. I am satisfied that no-one has threatened his family, physically or verbally. I find the applicant had no adverse profile imputed to him.
As I do not accept the applicant’s cousin was a high profile Shi’a, murdered by SSP supporters, and I do not accept the applicant is a witness of truth, I place no weight on the affidavit of the applicant’s wife or his best friends. I place no weight on them as I am of view that these documents were created in order to support the applicant’s claims.
Overall, the applicant did not impress me as a credible and truthful witness. I have considered a letter from the General Secretary of Anjumn Shia Ashria and the Police Form dated 25 June 2003. The applicant has provided letters from his Advocate, dated 12/12/2006 and 8/1/2007 and ‘A Police Information Form’ that I have found contradicted his verbal evidence. This suggests to me is that the applicant has access to a source of fabricated documents. I place no weight on the letter before me from the General Secretary or the Police Form dated 25 June 2003. I am of the view that these are documents created in order to support the applicant’s claims.
The Tribunal, having formed the view that the applicant was not a practicing Shia Muslim, assessed whether he would face Convention-related harm if he returned to Pakistan. It concluded:
I am satisfied the applicant has never experienced any problems in Pakistan in the past for a Convention related reason. I am not satisfied that the independent evidence before me demonstrates that the Pakistani government is unable to prevent and protect the applicant, a Sunni plumber, from harm.
I accept that SSP is now the Millat-e-Islamia. The independent evidence, before me, does not suggest that persons such as the applicant, a Sunni plumber, would be considered a threat by the Millat-e-Islamia or that they seek to harm them. I am of the view that were it the situation, it would be known to independent sources such as the US State Department, UK Home Office and Amnesty International.
The applicant now asks the Court to set aside the Tribunal's decision, and to order it to reconsider his refugee claims. I can only make these orders if I'm satisfied that the Tribunal's decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant's refugee claims should be believed, nor whether he should be granted a protection visa or any other permission to stay in Australia.
The applicant has filed an application, an amended application, and a written submission, containing various arguments. Unfortunately, most of these appear to be ill-considered repetitions from precedents used in other cases, or contain arguments that are unintelligible.
His documents contain contentions that the Tribunal did not consider the applicant's evidence or “integers” central to the applicant's claims. However, I am not persuaded that this happened. The Tribunal recorded in its statement of reasons all of the claims made by the applicant, and in my opinion it addressed them all in its reasons. Its total disbelief of the applicant’s veracity, explains why it rejected them all.
Most of the applicant's arguments dispute the failure of the Tribunal to accept the history given by the applicant. However, it was the Tribunal's duty to decide the merits of the matter, and it is not the function of the Court to do that.
I am not persuaded that the Tribunal “applied the wrong test” as is contended in grounds 6 and 7 of the amended application, whether by failing to address the real claims before it or in relation to onus of proof.
On the evidence which was before the Tribunal, it was open to it to form the view that the applicant’s credibility should not be accepted, and for that reason to reject his evidence and the documents he tendered in support (see WAKK v Minister for Immigration& Multicultural & Indigenous Affairs [2005] FCAFC 225 at [65] and following). It was, in my opinion, open to the Tribunal to reject the corroborative documents for the reasons which it gave in the present case.
I raised with the Minister's representative whether the Tribunal's finding that “the applicant has access to a source of fabricated documents”, and its rejection of his corroborative documents as “created in order to support the applicant's claims”, indicated a failure to comply with elements of procedural fairness which are encompassed within the Tribunal's duties under s.425 of the Migration Act (see SZBEL v Minister for Immigration& Multicultural & Indigenous Affairs (2006) 228 CLR 152). However, I accept the Minister's submission that I cannot be satisfied that the applicant was not sufficiently on notice that generally the truth of the contents of his documents, and of his evidence to the Tribunal, was a matter in issue before the Tribunal. A transcript of the hearing held by the Tribunal is not in evidence. The Tribunal's description of the hearing indicates that it did put various concerns to the applicant, and I am not satisfied that the applicant would have been under any misapprehension that the Tribunal might not accept his claimed history and the documents which he gave to the Tribunal both at the hearing and subsequently.
The applicant's written submission contends a failure to comply with s.424A(1) of the Migration Act. However, I can see no substance to that contention. Nor can I find any substance in the contentions that the Tribunal erred in relation to s.91R, and in its consideration of the definition of “refugee” and of independent country information.
The applicant attended today, and sought to submit more corroborative material from Pakistan. He also sought to address me concerning his fears of returning to Pakistan. However, as I have explained to him, it is not my task to form a conclusion on whether he has a well-founded fear of returning for a Convention reason.
I have considered all the arguments presented in the documents the applicant has filed, and am not persuaded that the Tribunal's decision was affected by any jurisdictional error. I must therefore dismiss the application.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Michael Abood

Date: 20 February 2008