SZNLN v Minister for Immigration
[2009] FMCA 651
•10 July 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNLN v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 651 |
| MIGRATION – Review of decision of Refugee Review Tribunal – impermissible merits review – Convention nexus – Tribunal’s use of language – no corroborative evidence to support applicant’s claims – Tribunal rejected applicant’s factual account – no jurisdictional error – application dismissed. |
| Migration Act 1958 (Cth), ss.36(2)(a), 65 |
| Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) 185 CLR 259 Yusuf v Minister for Immigration and Multicultural and Indigenous Affairs (2001) 206 CLR 323 SZCBT v Minister for Immigration Multicultural Affairs [2007] FCA 9 Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 Applicant A & Anor v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 Craig v South Australia (1995) 184 CLR 163 Machmud v Minister for Immigration & Multicultural Affairs [2001] FCA 1041 SZDWG v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1339 SZDPF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 235 SZFJU v Minister for Immigration and Citizenship [2007] FCA 1461 A v Minister for Immigration and Multicultural Affairs [1999] FCA 227 Wickramasinghe v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 30 SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 22 NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208 Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 Randhawa v Minister for Immigration and Ethnic Affairs (1994) 52 FCR 437 Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 CLR 703; [2001] FCA 679 |
| Applicant: | SZNLN |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 868 of 2009 |
| Judgment of: | Nicholls FM |
| Hearing date: | 4 June 2009 |
| Date of Last Submission: | 4 June 2009 |
| Delivered at: | Sydney |
| Delivered on: | 10 July 2009 |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondents: | Ms L. Clegg |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application made on 15 April 2009 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $4,900.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 868 of 2009
| SZNLN |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made on 15 April 2009 under the Migration Act 1958 (Cth) (“the Act”) seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 27 March 2009 which affirmed the decision of a delegate of the respondent Minister to refuse a protection visa to the applicant.
Background
The applicant is a citizen of Pakistan who arrived in Australia, on the latest occasion, on 19 September 2008. He applied for a protection visa on 13 October 2008 (reproduced at Court Book – “CB”, CB 1 to CB 41 with annexures). In essence his claim to fear harm was said to arise out of his sexual orientation, and harm he had suffered in Pakistan as a result.
The applicant did not attend an interview offered to him by the Minister’s delegate for reasons of illness. He sent, by facsimile transmission, a handwritten letter to the Minister’s Department on
15 December 2008asking the delegate to proceed to make the decision “without my coming” (CB 49).
On 15 December 2008 the delegate refused to grant a protection visa (CB 54 to CB 65). Given that he was unable to test the applicant’s claims, the delegate found he could not be satisfied that the applicant was a homosexual, and therefore, that he had a real chance of persecutory harm in Pakistan (CB 64.8).
The applicant applied for review of this decision on 2 January 2009 (CB 66 to CB 69). He was invited to, and ultimately did attend a hearing before the Tribunal on 18 March 2008 (CB 72 to CB 73).
An account of what occurred at the hearing is set out in the Tribunal’s decision record (CB 83.6 to CB 86).
Applicant’s claims to protection
The applicant’s claims before the Tribunal were that he was a homosexual who came from a Muslim, and “political”, family.
The applicant claimed that his family forced him to marry his cousin.
He was unhappy with this marriage and went to Bangkok to pursue business interests. He was forced to return to Pakistan at “knifepoint” by a relative. He claimed that when he told his family that he was “gay” his family locked him up in a “washroom” for nearly “six months”. He further claimed that his “family”, and even “children”, “beat” him during that period. The applicant claimed that he was able to escape his home on 17 September 2008 and flew to Australia on the same day. He feared that he would be “killed” by his family if he were to return to Pakistan.
The Tribunal’s decision
The Tribunal noted that the applicant provided “absolutely no evidence” to support the claim that he is “gay”. It listed at length examples of what could have been provided ([47] at CB 87).
The Tribunal found that it was “significant” that the applicant claimed that it would be difficult for him in Pakistan (“police, local people and Islamic organisations will be after him”), given that he had said that he had no difficulties at school, finding employment, being arrested or detained because he was “gay”, or for any other Convention reason ([47] at CB 87). It found the applicant’s claims to be “far-fetched”, and “unreasonable” for Islamic organisations to pursue him ([47] CB 87).
In relation to the applicant’s claims that he was “beaten”, locked in a “washroom” and was forced to return to Pakistan by his “cousin” at knifepoint in March 2008, the Tribunal found that the applicant provided “absolutely no evidence” to support these claims ([49] at CB 88.4).
The Tribunal found that the applicant provided “absolutely no evidence” to support any of his claims relating to his escaping from home and buying an international air ticket to Australia.
The Tribunal said it was unable to satisfy itself that the “applicant is in fact gay” or the truth of his factual account of what he said occurred to him as a consequence. This was said to be based on “its earlier findings and a lack of any evidence whatsoever” ([51] at CB 89).
The Tribunal also stated that when it considered his claims cumulatively, it did not accept that there was a “Convention nexus”, and was not satisfied that the applicant had a well-founded fear of persecution for a Convention reason ([51] at CB 89).
Application to the Court
The application to this Court puts forward the following grounds:
“(1) That the applicant has satisfied criterion s36(2)(a) for a protection visa.
(2) That the RRT failed to consider the conventional based factor, there is a legal and jurisdictional error in the decision”.
[Errors in the original]
Despite the opportunity, the applicant has not filed written submissions. Written submissions drafted by Counsel on behalf of the first respondent have been put before the Court.
Hearing before the Court
At the hearing before the Court, the applicant appeared in person.
He was assisted by an interpreter in the Urdu language. Ms L. Clegg of Counsel appeared for the first respondent.
Initially the applicant was unable to assist the Court beyond what had been put as the grounds of the application. He was unable to provide any particularity or to explain these grounds.
After hearing submissions from Ms Clegg, the applicant sought to address what could be described as the Tribunal’s “no evidence” findings by saying that he had no contact with his family, and therefore, was unable to obtain any documents in support of his claims before the Tribunal. Further, the applicant took issue with the Tribunal’s finding (“how could the Tribunal allege”) that he had no fear of persecution, and sought to address the Tribunal’s finding that there was no evidence to “suggest” that he was “gay”, with the assertion that there was no evidence to suggest that he was “not gay”.
The applicant put to the Court that he feared harm from the police, government, his family and Muslim organisations in Pakistan. Further, he took issue with the Tribunal appearing to believe some part of his claims, but not believing others. The applicant submitted that it was not open to the Tribunal to adopt this “half/half” approach.
In written submissions, the Minister asserts that both the applicant’s grounds are broad allegations of error, neither of which are directed to the facts of the case or the Tribunal’s decisions and lack particularity. I agree.
Ground One
At best, ground one is simply an assertion that the applicant has satisfied the criterion set out in s.36(2)(a) for a protection visa. Without anything further, this cannot be seen to rise above a request for this Court to intervene and substitute more favourable factual findings than those made by the Tribunal. That is a request for impermissible merits review (Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) 185 CLR 259 (“Wu Shan Liang”)).
Ground Two
The same can be said of ground two. Although, if the word “conventional” was actually a reference to “Convention” then it may be that the applicant seeks to take issue with the Tribunal’s finding that it did not accept that “there is a Convention nexus”, presumably between the applicant’s claims and the Refugees Convention ([52] at CB 89 of its decision record). This matter is dealt with below.
The Tribunal’s Use of Language: Jurisdictional Error?
At paragraph [52] (CB 89) of its decision record the Tribunal said:
“[52] The Tribunal then considered all the applicant’s claims cumulatively. However, when put together, the Tribunal does not accept that there is a Convention nexus and has not been able to satisfy itself that he has a well founded fear of persecution for a Convention reason on a cumulative basis”.
In written submissions (paragraph [17](b)) the Minister submits that there appears to be no basis for the Tribunal’s conclusion that there was no “Convention nexus” with the harm claimed by the applicant. However, the Minister submits, this is an example of “infelicitous or poorly expressed language” and that the Tribunal did not mean to say this but, intended to say, simply that it had considered the applicant’s claims cumulatively.
The Minister also submits that, having disposed of the applicant’s claims on credibility grounds, (that is, that it could be said in effect that, the Tribunal found the applicant “did not have any subjective fear of being gay in Pakistan”), what it said (at [52]) was really an observation that did not affect the exercise of its power. The Minister relies on Yusuf v Minister for Immigration and Multicultural and Indigenous Affairs (2001) 206 CLR 323 at [71] – [82] (“Yusuf”) in this regard.
In submissions before the Court Ms Clegg submitted that, rather than being seen as an example of infelicitous language, the Tribunal’s reference to “Convention nexus” should be read as “a slip” or “unfortunate”. The submission was that what appears at paragraph [52] needs to be seen in context, and following on from the paragraphs immediately preceding it. The submission was that the Tribunal did not need to make a finding that there was no Convention basis to the claim because, when read holistically, the decision record reveals that that was not the basis upon which the Tribunal’s decision was made.
That basis, Ms Clegg submitted, was a lack of satisfaction as to the material factual claims put before the Tribunal. When seen in that light therefore, paragraph [52] needs to be read with the emphasis on the Tribunal’s statement that it considered all of the applicant’s claims cumulatively. That is, that the Tribunal was concerned to reveal that even when viewed on a cumulative basis the different aspects of the applicant’s claims could still not lead it to be satisfied that the applicant had a well-founded fear of persecution for a Convention reason. This view, it was said, is supported by what the Tribunal said at paragraph [53] where it emphasised that it considered all the claims made by the applicant “both individually and collectively” (CB 89).
I understand the Minister’s position therefore to be that the use of the words “Convention nexus” which were described as “unfortunate”, should either be seen by the Court as a typographical error or a slip or in the alternative, should be disregarded as an error, because there is a sufficient and alternative basis on which to sustain the Tribunal’s reasoning. That is, that each aspect of the applicant’s claims when considered individually and cumulatively still left the Tribunal as not being satisfied that the applicant had a well-founded fear of persecution for a Convention reason. Ms Clegg relied on Yusuf where the High Court could not find that the Tribunal’s use of the words “Convention nexus” in that case amounted to jurisdictional error.
First, it should be noted, I remain mindful in relation to this issue, as with the issue that follows below, of what the High Court said in
Wu Shan Liang & Ors[1996] HCA 6; (1996) 185 CLR 259 (“Wu Shan Liang”) “the reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error” (at [30]).
Though the Minister did not expressly urge a “beneficial” construction of the Tribunal’s published reasons for its decision, as that phrase is used in Wu Shan Liang, I did understand the Minister’s position to be that when read fairly, and in context, the use of the phrase “Convention nexus” did not reveal jurisdictional error on the part of the Tribunal.
I am also mindful of what was, relevantly, said by Stone J in SZCBT v Minister for Immigration Multicultural Affairs [2007] FCA 9 at [26] (“SZCBT”):
“The Minister urged a ‘beneficial’ construction of the Tribunal’s reasons and referred to comments made in Minister of Immigration & Ethnic Affairs v Wu Shan Liang in particular at 271 – 272. The phrase ‘beneficial construction’ as used in Wu Shan Liang has a specific meaning, and was certainly not intended to mean that any ambiguity in the Tribunal’s reasons be resolved in the Tribunal’s favour. Rather, the construction of the Tribunal’s reasons should be beneficial in the sense that the Tribunal’s reasons would not be over-zealously scrutinised, with an eye attuned to error. In this sense a ‘beneficial’ approach to the Tribunal’s reasons does not require this Court to assume that a vital issue was addressed when there is no evidence of this and, indeed, the general thrust of the Tribunal’s comments suggest that the issue was overlooked.” [Citation omitted]
In my view, it is trite to say that Tribunals flirt with danger if the language used in decision records can be described by the Minister’s own counsel as “infelicitous”, poorly expressed, loose or even “a slip”. There is always the risk that, no matter what the skill of the advocate appearing on the Minister’s behalf (and, in effect, appearing to explain and defend the Tribunal’s decision) the Court may still feel unpersuaded by what is put on the Tribunal’s behalf.
The decision record currently before the Court did provide in my view, with respect, a challenge to the Minister’s counsel. But in relation to the issue of “Convention nexus” it is a challenge successfully met by her. I agree, and am ultimately persuaded, in large part by submissions made by Ms Clegg, that no relevant error is revealed in this regard.
However, I do not agree that the reference to “Convention nexus” appearing at paragraph [52] can properly be described, even on a beneficial or fair reading, as a “typographical error”, or even in that sense “a slip”.
It may be that the Tribunal did not fully understand what is meant by the phrase “Convention nexus”. It is, of course, a shorthand way of referring to the situation where an applicant who seeks to be recognised as a refugee and who has established before the Tribunal a fear of persecution, must also demonstrate that the persecution feared is at least for one of the reasons set out in Article 1A(2) of the United Nations Refugees Convention (see Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559, especially at 570 (“Guo”)).
For the Tribunal’s benefit I note that this could result in a situation, where a person fearing persecution may, notwithstanding that fear, not be given protection as a refugee where the fear of persecution does not involve a Convention connection (see for example Applicant A & Anor v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at 248 per Dawson J (“Applicant A”)).
Again for the Tribunal’s benefit, there needs to be a causal connection between the harm feared and a Convention ground. This, in short, is what is meant by the term “Convention nexus”.
It is, as was said in Yusuf at [82] and with reference to Craig v South Australia (1995) 184 CLR 163 at 179, that the Tribunal would fall into an error of law if it were to identify “a wrong issue, to ask itself a wrong question … to make an erroneous finding or to reach a mistaken conclusion...”
However, I am not persuaded that the Tribunal’s reference to “Convention nexus” in the current case should be seen as such a situation. This can be said with reference to a fair reading of the Tribunal’s decision record as a whole, and what, in context, the Tribunal was seeking to do at paragraph [52] of its decision record.
Up to, and prior to, this point in its analysis the Tribunal clearly rejected the credibility of the applicant’s claims. That is, each facet or aspect of the applicant’s claims.
Two things then can be relevantly said about paragraph [52].
The first is that I am persuaded by, and agree with Ms Clegg that the Tribunal there was concerned to demonstrate, or reveal, that while it had rejected the credibility of each aspect of the applicant’s claims, it was still not persuaded to find for the applicant even when those claims were considered on a cumulative basis.
Second, given that the Tribunal had found that the applicant had not established a fear of persecution the question as to whether there was a fear of persecution that had a causal connection, or nexus, to a Convention ground is obviously not relevant. Given its earlier findings, the Tribunal was not required to consider whether it accepted, or not accepted, that there was a Convention nexus. This was plainly a superfluous reference.
What is critical is that on a beneficial reading the Tribunal rejected, both on an individual and cumulative basis, the applicant’s claims to fear persecutory harm. In these circumstances what the Tribunal said after the reference to “Convention nexus”, and further, what was perhaps more clearly expressed at paragraph [53], the Tribunal was therefore not satisfied that there was a real chance that he would be subjected to “serious harm amounting to persecution for a Convention reason” if the applicant was to return to Pakistan.
In other words whether or not the Tribunal properly understood what was meant by the term “Convention nexus”, the Tribunal separately found that even when viewed cumulatively, the applicant’s claims did not lead to a satisfaction of a well-founded fear of persecution for a Convention reason.
In all, therefore, whether or not the reference to “Convention nexus” (at [52]) manifested ignorance on the part of the Tribunal as to the real meaning of this phrase, it nonetheless did not affect (when read fairly) the Tribunal’s ultimate finding that the applicant did not have a well-founded fear of persecution for a Convention reason. On this basis the use of this phrase did not affect the exercise of the Tribunal’s power.
In written submissions (paragraph [17]) the Minister also refers to another example of what is described as “infelicitous” or poorly expressed language in the Tribunal’s decision record. That is, that at paragraphs [47] and [51] of its reasons the Tribunal refers to the applicant having “absolutely no evidence” to support the claims that he was “gay”.
The Minister refers to Machmud v Minister for Immigration & Multicultural Affairs [2001] FCA 1041 per Hill J at [16] (“Machmud”) and submits that this may be suggestive of a requirement that the applicant provide corroborative evidence. However, the Minister asks that this Court read the Tribunal’s decision fairly, and that on this basis, the reference to “absolutely no evidence” can be taken as an expression of concern about the unsatisfactory state of the applicant’s evidence as a whole, and more particularly lack of documents to support his claims.
In submissions before the Court Ms Clegg submitted that there were three separate components to the applicant’s claims. That is, the claim that he feared persecution from police and authorities, the claim that he feared persecution from Islamic fundamentalist organisations, and the claim that he feared persecution from his family. All of which emanate from the central claim that he was a “gay” man in Pakistan.
Ms Clegg submitted that in respect of each of those claims, there was what was described as an element of reasoning in the Tribunal’s analysis that was directed to a failure to make out the claims. That is, failure to make out the claims based on what the applicant himself told the Tribunal at the hearing. That the Tribunal’s reference to “absolutely no evidence” was meant to be read as an absence of corroborative evidence. However, importantly, the Tribunal’s reasoning and decision was not sustained by that latter point alone. That is, that this Tribunal decision should not be read as requiring the applicant to provide corroboration to substantiate his claims.
In Machmud the Court said at [16]:
“There is also the suggestion on the part of the Tribunal that there is some necessity of an applicant to the Tribunal to “substantiate” claims. If that is intended to suggest that there must be some corroboration given by an applicant, it clearly is erroneous. The word “substantiate” is defined in the Macquarie Dictionary 3rd Edition as follows “1. to establish by proof competent evidence:... 2. to give substantial existence to. 3. To present as having substance”. The ordinary English use might suggest the Tribunal member did not regard the applicant’s statement as being evidence at all but rather required some other evidence to be provided. The sense in which it is used may perhaps also suggest that the Tribunal thought that there was a need for corroboration. If corroboration were necessary there was the country information. But, be this as it may, there certainly is no necessity as a matter of law that an applicant to the Tribunal corroborate, if that is what the Tribunal meant, a statement made”.
There are in fact four parts, in four different paragraphs, of the Tribunal’s decision record that require consideration in this regard.
At paragraphs [47] (CB 87.5), [49] (CB 88.4), and [50] (CB 89.3) the Tribunal made reference to the applicant having provided “absolutely no evidence” to support his claims. Further, at paragraph [51] (CB 89.4) the Tribunal made reference to “a lack of any evidence whatsoever”.
Further, to what was said in Machmud, I also took into account what was relevantly said in SZDWG v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1339 per Wilcox J at [7] (“SZDWG”):
“[7] It will be noted that the Tribunal member formed an opinion that corroborative evidence would be likely to have been available if the factual statements made by the appellants had a good basis. He noted that no corroborative material had been provided. I agree with Mr Silva that it would have been a jurisdictional error if the Tribunal member had held, as a matter of law, that absent corroborative evidence, it was not open to him to accept the appellants’ account of relevant events. However, the Tribunal member did not do this. He simply observed that, in considering whether or not to accept the appellants’ case, it was noteworthy that there was no corroboration, despite the fact that one would have expected corroborative material to be available”.
See also what was relevantly said in SZDPF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 235 per Sackville J at [33] (“SZDPF”):
“Nor was there any error in the way in which the RRT addressed the absence of corroborative evidence. The delegate had rejected the appellant’s principal factual claims because:
‘[a]lthough [the appellant] has had the assistance of a migration agent in preparing his application, his statement is uncorroborated and much of the information he has provided is broad, vague and lacking in … detail’.
The delegate went on to identify specific claims that lacked supporting evidence. The RRT was merely pointing out that the appellant had been alerted, nine months before the RRT hearing, to the difficulty that his claims lacked corroborative evidence.
It was open to the RRT to take into account the appellant’s apparent inability at the hearing to back up his claims with documentary or other evidence. The appellant was assisted by a migration agent and had been told by the delegate that his claims were difficult to accept without corroboration. The suggestion that the RRT acted unreasonably in finding that the appellant had had sufficient time to produce any corroborative evidence at the hearing is unsustainable”.
See also what was said in SZFJU v Minister for Immigration and Citizenship [2007] FCA 1461 per Branson J at [10] (“SZFJU”):
“I accept that Tribunals, and particularly lay Tribunals, sometimes assert that there is ‘no evidence’ on an issue when they mean that, although there is some evidence on the issue, they do not regard the evidence as sufficient to support a particular finding (see, for example A v Minister for Immigration and Multicultural Affairs [1999] FCA 227 at [23]-[27] and Wickramasinghe v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 30 at [18]). In every case the meaning intended to be conveyed by the Tribunal is to be determined by reference to the language used by the Tribunal understood in the context provided by the Tribunal’s reasons for decision as a whole. In this case, having twice asserted that there was ‘no evidence’ of a particular character, the Tribunal went on to state that the appellant had not provided ‘any information which would support [his] claim other than his own speculative assertion’. I conclude that the Tribunal’s language, understood in the context provided by its written reasons as a whole, suggests that the Tribunal intended to convey that there was no evidence at all on the two matters identified by it”.
In the current case it appears that the Tribunal did not comprehend that what the applicant told him at the hearing was evidence. A plain reading of its decision record reveals that the Tribunal regarded what the applicant said at the hearing as entirely “claims”, rather than “evidence” in support of his claims. This view should not have been taken simply because the applicant gave an affirmation rather than an oath if this explains what the Tribunal did (see CB 75).
However, I am satisfied that, at least on a fair reading of its decision record, where the Tribunal made reference to “absolutely no evidence”, and “a lack of any evidence whatsoever” what the Tribunal meant to convey was that there was “no evidence” before it in addition to, or in support of, what the applicant told it at the hearing.
I do not see this case as falling squarely within what was found by Branson J in SZFJU. In that case the Tribunal’s reference to “no evidence” was, when read in context and having regard to the Tribunal’s language, seen as saying that although there was some evidence on a particular issue, it was not regarded as evidence sufficient to support a particular finding (SZFJU at [53]).
Even when read fairly in the current case, the Tribunal’s decision record reveals that the Tribunal rejected the applicant’s claims, both individually in relation to each of the three aspects of his claims put forward, and also ultimately on a cumulative basis (see [47] and [48] of this judgment above). This corresponds with what was set out at paragraphs [47], [49], [50], and ultimately at paragraph [51] of its decision record.
However, I do not see this as a case where the Tribunal, unlike as in SZFJU, could be understood as saying that while there was some evidence in relation to each aspect of the claim, it was nonetheless not regarded as sufficient to support a particular finding. In the current case the Tribunal’s rejection of each of the three aspects of the applicant’s claims was said to be based on “absolutely no evidence.”
The issue, however, is whether the Tribunal proceeded on this basis and can be said to have held, or expected, that in the absence of any evidence whatsoever (that is, corroborative evidence) it was not open to accept the applicant’s account of relevant events and claims. Such an approach of course would be seen as jurisdictional error given the authorities referred to above (SZDWG and Machmud). Or whether what occurred in the current case was closer to the situation found by Sackville J in SZDPF where it could be said that it was open to the Tribunal to take into account the applicant’s inability at the hearing to support his claims with documentary, or other, evidence.
At paragraph [47] the Tribunal considered the applicant’s claim that he was a “gay” man in Pakistan and had faced harm as a result. The Tribunal began its analysis by making reference to there being “absolutely no evidence” to support the claim that the applicant was “gay”.
However, given what follows, it can be said, on a fair reading, that this was not the only reason for rejecting this claim. A fair reading of the Tribunal’s analysis of this issue, in my view, is that the Tribunal’s conclusion that it was unable to satisfy itself that the applicant was “in fact gay” was arrived at, and informed by, a finding other than the lack of any evidence in support.
The Tribunal found it “significant” that even though the applicant claimed that he was a “gay” man in Pakistan, the only incident of harm that he was able to put forward was that he was abused by his family and held against his wishes in a washroom in 2008.
The Tribunal found it “significant” that the applicant made no claim that he had ever experienced any other difficulty “whatsoever in Pakistan because of his claims to be gay”. In particular, that he had not made any claims that he had difficulties at school, finding a job, or any other form of employment, or had been teased, arrested or detained by the police or any other authorities in Pakistan. The Tribunal further found as “far-fetched and unreasonable” in the circumstances presented, that Islamic organisations would seek to act against the applicant. Further, the Tribunal rejected the applicant’s claims that as a “gay” man he would face persecutory harm with reference to independent country information that in “major cities” despite the strict laws of Islam “gay men, transvestites, and transsexuals live relatively undisturbed from the police”.
At paragraph [48] the Tribunal found that the applicant’s claim was ultimately “not that he fears persecution in Pakistan from the community at large because he is gay but rather because of his claimed treatment by his family and their desire to kill him because he claims he is gay”. At paragraph [49] therefore the Tribunal then proceeded to consider the applicant’s claim that he was forced by his family to return to his home and was subsequently beaten and locked in a washroom.
Again, the Tribunal began this analysis with a reference to the applicant having provided “absolutely no evidence to support these claims”. But then proceeded to make findings in relation to the claim itself.
In this regard the Tribunal found that while it was “remotely plausible” that he may have been held in a concrete washroom for nearly six months by his family, it did not accept that he could have been forced by either threats or at knifepoint “to undertake the long and lengthy journey from the time of leaving his home in Bangkok, going through the normal security and immigration formalities at Bangkok International airport, let alone being forced on to the plane against his will, and then, after arrival at Lahore airport again being forced to undertake the nearly two hour (see paragraph [36] at CB 84) journey to his home in Sialkot without there being ample opportunity for him to escape”.
The Tribunal found that the applicant “would have been able to seek protection from the Thai police or other authorities at Bangkok International airport after he went through security checking where weapons are not allowed, and would have been able to seek assistance when he undertook normal flight check-in, immigration or customs departure formalities or simply run away”. The Tribunal also rejected the applicant’s claims that his mother had assured his wife that she would kill the applicant. That plainly this did not happen even though there was “every opportunity for this to occur as he claims he was locked in a washroom for nearly six months and was so powerless that he was even beaten by children”. When paragraph [49] is read as a whole, it is clear that the Tribunal did not regard what the applicant told it at the hearing as being truthful, or that the applicant was a “credible witness”.
One reading of paragraph [50] of its decision record may present a difficulty for the Tribunal. It appears that the Tribunal may have rejected the applicant’s claim that he was able to “get a standby seat on flights to Australia at Lahore International airport the same day that he fled his house in Sialkot”, on the basis that the applicant had provided “absolutely no evidence”, that is, documentary evidence, for example in the form of international airline tickets to support this claim.
However, the matter of the international airline tickets and the applicant’s “possible” capacity to have been able to get a standby seat on flights to Australia and the fact that the applicant provided absolutely no evidence in the form of international air tickets does not assist the applicant when the Tribunal’s reasons are read as whole.
The Tribunal’s rejection of the applicant’s claims to have been locked up and beaten by his family and its rejection of his ability to escape, was not based even in part on the applicant not providing the relevant international airline tickets. The Tribunal allowed that, indeed, it may be “possible for him to have been able to get a standby seat on flights to Australia” because it accepted that the applicant was a “very experienced international traveller”.
It was in that context that the Tribunal noted that nonetheless there was “absolutely no evidence”, such as an airline ticket, to support his claim in this regard. What is important is that the Tribunal allowed for the possibility that this part of the applicant’s account could have occurred as the applicant said. When read in this way therefore, I am satisfied, that the Tribunal’s rejection of the applicant’s account to have been held for six months and beaten by his family and to have been able to have escaped from this detention was not reliant on his inability to provide evidence in the form of international air tickets.
This reference to “absolutely no evidence” (in the form of airline tickets) must be seen in context of the Tribunal allowing for the possibility that the applicant obtained an airline ticket in the circumstances as he claimed. The Tribunal’s rejection of the remainder of the applicant’s account to have been returned to Pakistan from Thailand at knifepoint, to have been detained and beaten for six months, to have escaped this detention and travelled to Lahore Airport in the same day was rejected for quite separate reasons to the matter of his capacity (which was “possible”) to obtain an international airline ticket.
Finally, what is set out at paragraph [51] clearly is a conclusion to all of the Tribunal’s reasoning as set out above:
“Accordingly, and given all the above and in view of its earlier findings and lack of any evidence whatsoever, and despite being advised in the Tribunal’s letter of 4 February 2009 that on the material before it the Tribunal was unable to make a favourable decision on the information he had provided, the Tribunal has not been able to satisfy itself that the applicant is in fact gay or that he was forced to return to Pakistan by his family as he claims where he divorced his wife, declared he wished to marry a man, was beaten up and threatened at gunpoint by his brother and other family members, and was forcibly detained by his family in a washroom for nearly 6 months prior to being able to escape on 17 September 2009, and the Tribunal does not accept these claims. If follows that the Tribunal is satisfied that the applicant does not have a well founded fear of serious harm amounted to persecution for a Convention reason on this basis”.
What can be seen, on a fair reading, is that the Tribunal, did distinguish between “the lack of any evidence whatsoever” and its “earlier findings” which in context must refer to the findings (absent the issue of “no corroboration”) in relation to each aspect of the applicant’s claims.
In all, therefore, I agree with Ms Clegg however, that the Tribunal’s use of such language, whether described as infelicitous, poorly expressed, unfortunate or a slip, does not of itself reveal jurisdictional error. Further, in the circumstances discussed above it does not reveal jurisdictional error on the part of the Tribunal, in its assessment of this case. I agree with Ms Clegg that, at least, on a fair reading of the Tribunal’s decision record, the Tribunal’s analysis certainly contained reasoning in relation to an absence of corroborative evidence, but that was not all that sustained the Tribunal’s reasoning and supported its ultimate conclusion. In that sense this case is somewhat closer to what was the situation in SZDPF where it was found that it was open to the Tribunal (in those circumstances) to take into account the applicant’s apparent inability at the hearing to support his claims with documentary evidence (see SZDPF at [33]).
Although, clearly, not as clear cut as the circumstances set out in that case, the Tribunal in this case had told the applicant, as it is said (at paragraph [51] of its decision) that it was unable to make a favourable decision on the information he had provided. (By its letter 4 February 2009 (CB 72)).
Further, by a letter of 2 January 2009 (CB 70 to CB 71), the applicant was told by a Tribunal officer that a hearing “is your opportunity to give the Tribunal evidence to support your application”. That “evidence” could include “information or documents you give the Tribunal” or “information or documents you ask others to give the Tribunal” (CB 71.1).
The applicant did not provide any such supporting material, despite being on notice of the Tribunal’s preliminary view that on what was before it, it could not make a decision favourable to the applicant. Further, the opportunity to do so was afforded to him at least from the time he received the letter of 2 January 2009 from the Tribunal officer (CB 70).
It must be said in light of the matters discussed above, that it may be of some benefit to the Tribunal member to read this letter sent by the Tribunal employee where “evidence” is also plainly said to include “what you tell the member at the hearing”. This may provide a better understanding of the difficulty created by the repeated use of the phrase: “absolutely no evidence”.
Applicant’s Complaint at Hearing
At the hearing before the Court, the applicant submitted that, as he had no contact with his family, he was unable to obtain any documents to support his claims before the Tribunal.
First, it must be noted that the type and range of material that the Tribunal felt could have been provided went beyond what may have been obtained from the applicant’s family in Pakistan. For example, the Tribunal made reference to there being no “letter from a member of the gay community in Sydney where [the applicant] has now been living for six months…([47] at CB 87).
Second, the issue of supporting documentary material was raised at the hearing with the Tribunal. The Tribunal’s account of what occurred at the hearing remains unchallenged by the applicant before this Court. For example he has not provided any transcript of the hearing to contradict the Tribunal’s account.
At paragraph [36] (CB 84) of its record the Tribunal states that it: “Asked if there was any written documentation” to support his claim to have divorced his wife. The applicant’s reported response reveals that the difficulty he now claims in providing supporting documentary material (the difficult relationship with his family) was put to the Tribunal. An explanation, which it can be clearly inferred, the Tribunal did not accept (see in particular [47] at CB 87: “…a letter from a member of his family condemning him because he was gay…”)
Further, there is nothing before the Court to show that the applicant asked the Tribunal for any adjournment or asked for more time to provide supporting documentary material from sources other than his family. In the Tribunal’s account of the hearing it reports that at the conclusion it: “Asked if he wanted more time to comment on or to respond to the information that had been put to him at the hearing, the applicant replied in the negative” ([44] at CB 86).
The applicant also complains now that there was no evidence before the Tribunal to “suggest” that he was “not gay”. This complaint misconceives the Tribunal’s task. It is not for the Tribunal to “prove” or “not prove” an applicant’s claim. The Tribunal is obliged to consider an applicant’s claims, and all aspects of the claims. The relevant statutory regime (s. 65 and s. 36(2)) of the Act requires that a protection visa must be granted if the relevant decision maker reaches a level of satisfaction that an applicant, in effect, meets the definition of “refugee” set out in Article 1A(2) of the UN Refugees Convention. If this level of satisfaction is not reached the visa is not granted (see SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 at [15] to [16] (“SJSB”), NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208 at [4] to [5] (“NAST”), Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 (“VSAF”)). Plainly on what was before it the Tribunal could not reach the requisite level of satisfaction.
The applicant also complained that it was not open to the Tribunal to believe some of his claims and not others. Presumably, the compliant is that having accepted some of his claims, it should have accepted all.
This complaint must be rejected. First, there is no obligation on the Tribunal to accept all of the applicant’s claims. Nor is there any obligation to accept any part of an applicant’s claims. Nor is there any obligation to accept all claims on the basis of having accepted some part of them (see Randhawa v Minister for Immigration and Ethnic Affairs (1994) 52 FCR 437 at 451 (“Randhawa”)).
Second, in the current case the Tribunal comprehensively rejected the central basis of the applicant’s claim to be in need of protection in Australia. That is, it rejected the claim that he was a “gay” man in Pakistan. This finding was open to it on what was before it.
The Tribunal gave reasons for this (see Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 558-559, W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703; [2001] FCA 679 at [64]-[69] per Tamberlin and Nicholson JJ).
Further, the Tribunal separately rejected the applicant’s factual account of what he said had occurred to him in Pakistan. It also rejected the claims to fear harm from the police, the authorities, Islamic fundamentalists and his family. All these findings were also open to it on what was before it.
From the Tribunal decision record these are only two circumstances where it can be said that the Tribunal may have accepted some aspects of the applicant’s claims.
At paragraph [49] (CB 88) the Tribunal states: “And while the Tribunal accepts that the applicant’s claim that he was held in a concrete washroom for nearly six months is remotely plausible…”
The Tribunal’s expression, or loose use of language, again provides some difficulty here. However, on a beneficial reading, and when read in context, I am satisfied that what the Tribunal meant was not that it accepted that the applicant had been held in a concrete washroom for six months, but that it accepted that such a claim on its own, is “remotely plausible”. The analysis that follows however clearly shows that while this one aspect of the applicant’s factual account was “remotely plausible”, all the other aspects of the sequence of events provided by the applicant were found not to be plausible at all and were rejected as being “untruthful”.
At paragraph [49] (CB 88.9) the Tribunal concluded its analysis of the applicant’s account of having been taken at knifepoint back to Pakistan and detained and mistreated by his family:
“Given all the above, the Tribunal has not been able to satisfy itself that the applicant was forced to return to Pakistan from Thailand by his family because he was gay or for any other reason, and the Tribunal does not accept these claims. It also follows that the Tribunal finds that the applicant has been untruthful and is not a credible witness”.
When beneficially read in context therefore the Tribunal did not accept that the applicant was being truthful in his factual account of what he said happened with his family. The acceptance that the claim to have been held in a concrete washroom may have been initially “remotely plausible” must be seen in context as ultimately having been rejected by the Tribunal in light of its other findings about the applicant’s factual account and the finding that he had been untruthful and not a credible witness. This does not provide a basis for the applicant’s submission now that the Tribunal accepted some of his claims, let alone “half”.
At paragraph [50] (CB 89.3) the Tribunal states:
“The Tribunal does accept, however, that the applicant is a very experienced international traveller and, while unlikely, it may just be possible for him to have been able to get a standby seat on flights to Australia…”
This again however, does not provide a basis for the applicant to say now that the Tribunal accepted “half” of his claims. The Tribunal allowing for such a “possibility” does not necessarily mean its acceptance that this in fact occurred. Again, when read in context, and as a whole, the Tribunal’s analysis shows that it comprehensively rejected the applicant’s claims to have been a “gay” man in Pakistan, to have been detained and beaten by his family and to have escaped from his family home and flown to Australia in one day ([50] at CB 89.1). The unlikely possibility that he might have been able to obtain airline tickets (albeit a claim not supported by evidence) does not therefore, detract from the Tribunal’s critical findings in rejecting the core, and overwhelming, part of the applicant’s claims. On any reading allowing for an “unlikely possibility” does not account for an acceptance of this aspect of his claims, let alone “half” of his claims.
The factual basis of the applicant’s complaint now that the Tribunal believed a measure of his claims (“half and half”) is simply not made out. But even if it were, this would not have bound the Tribunal to have accepted all of his claims as submitted by the applicant now.
The remainder of the applicant’s complaints before the Court sought to take issue with parts of the Tribunal’s factual findings. As such the applicant sought to engage this Court in impermissible merits review, and do not assist him for those reasons (Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) 185 CLR 259).
Conclusion
For the applicant to succeed before the Court, the Court would need to discern jurisdictional error (at least) on the part of the Tribunal.
I cannot discern such error for the reasons set out above.
This application is dismissed.
I certify that the preceding ninety-nine (99) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Associate: S.Polley
Date: 10 July 2009
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