SZLZS v Minister for Immigration

[2008] FMCA 1092

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLZS v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 1092

MIGRATION – Review of RRT decision – where Tribunal failed to reach state of satisfaction that applicant was a person to whom protection obligations were owed – where Tribunal not satisfied with authenticity of corroborative evidence – whether Tribunal failed to consider applicant’s claims – whether Tribunal required to conduct its own inquiries regarding the applicant’s claims – whether Tribunal gave proper consideration to applicant’s documents.

Migration Act 1958 (Cth), ss.65, 424A

Minister for Immigration v SBAA [2002] FCAFC 195
Minister for Immigration v Yusuf [2001] 180 ALR 1
Minister for Immigration v Le [2007] FCA 1318
SZHVL v Ministerfor Immigration [2008] FCA 356
Seyfarth vMinister for Immigration [2004] FCA 1713
VCAK of 2002 v Ministerfor Immigration [2004] FCA 459
Minister for Immigration v SGLB [2004] 207 ALR 12

Applicant: SZLZS

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG418 of 2008

Judgment of: Raphael FM

Hearing date: 28 July 2008

Date of Last Submission: 28 July 2008

Delivered at: Sydney

Delivered on: 28 July 2008

REPRESENTATION

Applicant in person

Counsel for the Respondent: Mr T. Reilly

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. Application dismissed.

2. Applicant to pay the first respondent’s costs assessed in the sum of $4,500.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG418 of 2008

SZLZS

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of Pakistan. He arrived in Australia on 27 April 2007. On 4 June 2007 he applied to the Department of Immigration & Citizenship for a protection (class XA) visa. On 31 August 2007 a delegate of the Minister refused to grant a protection visa and the applicant sought review from the Refugee Review Tribunal on
   11 October 2007. The Tribunal held a hearing, which the applicant attended and provided the Tribunal with some documentation.
   On 5 December 2007 the Tribunal sent the applicant a letter pursuant to the provisions of s.424A Migration Act 1958 (Cth) (the “Act”).
   The applicant provided some further documentation in response to that letter but otherwise did not comment upon it. On 14 January 2008 the Tribunal determined to affirm the decision under review and handed that decision down on 5 February 2008.

2. The ground upon which the applicant claimed to be a person to whom Australia owed protection obligations was his fear of persecution in his home city arising out of his being a Shia Muslim in an area dominated by Sunni Muslims. He claimed to have suffered three incidents of harm, all of which he had reported to the police. In 1999 people broke into his house and shot his brother. In 2000 he was followed and shot at by people in a car, and again in 2000 he received telephone threats on his life. The applicant claimed to be a member of the Tahreek-e-Jafria. He claimed that the business which he operated had ceased because of his inability to attend, and he believed that he would be at risk of harm from members of the Sunni Muslim sect should he return.

3. The Tribunal questioned the applicant on his claims and discussed with him some inconsistencies between those claims as expressed in a telephone interview with the Department and at the Tribunal hearing. These matters are referred to at [CB 104]-[105]. The Tribunal discussed with the applicant some concerns which it had about the documents which were then before it. For example, the documents were allegedly dated in 1991 but they appeared to the Tribunal to be in pristine condition. The Tribunal was unable to understand how this might have occurred given the lengthy period of time that had elapsed. The Tribunal also had concerns about how the organisations involved had kept originals of these documents. The Tribunal pointed out to the applicant inconsistencies in his statement concerning his membership of the Shia sect and why the applicant had waited so many years after the last incident before leaving Pakistan.

4. The s.424A letter, written on 5 December 2007 and extracted at [CB108]-[110], goes into all these matters in some detail and explains to the applicant why they give the Tribunal cause for concern.

   
   

   The applicant's response to the letter was the production of a further identity card from Tahreek-e-Jafria [CB 109]:

   “An English translation is provided.  The card itself appears to have been printed on two pieces of paper glued back-to-back and encased in transparent plastic.  A notable feature is that the photograph of the applicant appears to be a very recent one despite the fact that the card is said to have been issued in September 1991 when he was aged just eighteen years.” 

   Other documents were submitted by the applicant which were commented upon at [CB110].

5. In its findings and reasons the Tribunal explains why it was unable to be satisfied that the applicant was a genuine refugee. It considered him an unimpressive witness at the hearing. His evidence was “markedly vague and uninformative, even on relatively simple factual issues” [CB111]. He gave to the Tribunal “a clear impression of evasiveness and a readiness to modify aspects of his evidence when he was pressed about inconsistencies in his claims” [CB 111]. The Tribunal then goes on to refer to specific inconsistencies [CB111]-[112] before noting the fact that his response to the detailed s.424A letter was only the production of documents, and the invitation to comment upon inconsistencies was not taken up.

6. Unlike many Tribunals, this Tribunal did not make firm adverse findings but correctly restricted itself to the question of whether or not the applicant had satisfied it that he was a person to whom protection obligations were owed. The Tribunal noted that it was not satisfied that the applicant had told the truth about fearing harm because of his Shia religion or that he had ever suffered harm because of that religion or conversions that have been engineered by him. The Tribunal expressed its lack of satisfaction with the authenticity of the corroborative material for reasons which are clearly and carefully explained. Finally, the Tribunal deals with a matter raised by the applicant as to the hearing, in particular the Departmental interview. After noting again the applicant's lack of response to the 424A letter it summarises its position by saying [CB 115]:

   “On the basis of all the information before the Tribunal I am not satisfied as to the truth of the Applicant's claims to have suffered harm in Pakistan either because of his religion or because he converted others to it.  I am not satisfied that he was attacked, that he had to live in hiding with his family, that his business was destroyed or that he suffered any other form of harm.  Nor am I satisfied that there is a real chance that he would suffer harm in future for these reasons.”

7. The applicant filed with this court an amended application on 24 April 2008. That document alleges that the Tribunal fell into error in a number of ways. The first was that there was no basis upon which it could find that he was not involved in Tahreek-e-Jafria or that the attempts to murder him and destroy his business were fabricated.

   
   

   The Tribunal has not found that the attempts to murder the applicant or destroy his business were fabricated. It found that it was not satisfied that those attempts were made. The applicant had not fulfilled the obligation placed upon him by s.65 of the Act.

8. The second matter raised by the applicant was that the Tribunal misconstrued the requirements of the Convention definition by holding that there was no real chance that he would suffer persecution for religion or any other Convention reason. This appears to me to be a request that the court provide him with a merits review because there are no particulars of the misconstruction given that would indicate that it is a question of law rather than fact.

9. The third matter raised by the applicant is that the Tribunal's decision was affected by error because it did not take into account certain relevant considerations or ‘integers’ because the applicant was being questioned for a number of hours without a break and felt stressed and intimidated. There are some particulars of this, although they are stated under paragraph 4 of the application, and the applicant said that the Tribunal did not consider that he had been under immense and intimidating pressure from Sunni militants. The Tribunal did consider the applicant's claims of this nature but found that he had not satisfied it of their substance. The applicant has perhaps confused the word ‘consider’ with the word ‘accept’. A Tribunal can consider matters and not accept them. This possible confusion appears again in particular (b) where it is alleged that the Tribunal did not consider his claim “that his membership with Tahreek-e-Jafria”. The Tribunal most certainly considered whether the applicant was a member of Tahreek-e-Jafria but came to a view that it could not be satisfied he was because of the doubtful nature of the documents which he had produced to corroborate his statement.

10. The next matter raised by the applicant is that the Tribunal failed to record its decision in accordance with s.430 of the Act. A failure to comply with s.430 does not constitute a ground for review: Minister for Immigration v SBAA [2002] FCAFC 195; Minister for Immigration v Yusuf [2001] 180 ALR 1. The particulars of this alleged failure are that the Tribunal made no finding as to the extent or nature of persecution suffered by the applicant. The Tribunal did make a finding, which was that it was not satisfied the applicant suffered any persecution.

    The second particular is that the Tribunal found that the persecution suffered was not for any Convention reason. With respect to the person who drafted this document, it would have been more helpful had he read the decision in detail. So far as I can see that is not a finding that the Tribunal made.

    Finally, it is suggested that the Tribunal failed to record the material facts for the reasons referred to. In my view, the Tribunal did record all the material facts, clearly and cogently.

11. The last claim is that the Tribunal failed to determine the chances of the applicant being persecuted should he return to Pakistan. The Tribunal did do that: it considered that he would not be persecuted.

12. The applicant filed a written submission with this court on 8 July 2008. It follows the amended application and does not, to my mind, need further comment. Before me today the applicant said that the Tribunal did not take any action to verify his claims from Pakistan. I think what the applicant meant was that the Tribunal had not conducted its own inquiries. As the applicant has not explained what information it was that the Tribunal might have obtained from Pakistan, it is difficult for me to say that it had failed to obtain information on a critical issue where such information was readily available and centrally relevant: Minister for Immigration v Le [2007] FCA 1318. The fact is there is no general duty to inquire on the part of the Tribunal: SZHVL v Ministerfor Immigration [2008] FCA 356, Seyfarth vMinister for Immigration [2004] FCA 1713, VCAK of 2002 v Ministerfor Immigration [2004] FCA 459; Minister for Immigration v SGLB [2004] 207 ALR 12.

13. The applicant then told me that he had provided some documents to prove his case but the Tribunal did not give them proper consideration. I cannot accept this statement as correct as the Tribunal explains in some detail why the documents failed to satisfy it. I have considered the Tribunal's decision myself and I am unable to find any other grounds upon which it might be said that the Tribunal fell into jurisdictional error. The application is dismissed. The applicant shall pay the respondent's costs which I assess in the sum of $4500.00.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date:  30 July 2008