SZNRG v Minister for Immigration
[2009] FMCA 1126
•2 November 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNRG v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 1126 |
| MIGRATION – Application to review decision of Refugee Review Tribunal – no jurisdictional error – application dismissed. |
| Migration Act 1958 (Cth), ss.424A, 425 |
| Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Others (1996) 185 CLR 259; [1996] HCA 6 SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190; [2007] HCA 26 |
| Applicant: | SZNRG |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1415 of 2009 |
| Judgment of: | Barnes FM |
| Hearing date: | 2 November 2009 |
| Delivered at: | Sydney |
| Delivered on: | 2 November 2009 |
REPRESENTATION
| Applicant: | In person |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application be dismissed.
The applicant pay the costs of the first respondent fixed in the sum of $4,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1415 of 2009
| SZNRG |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application for review of a decision dated 15 May 2009 made by the Refugee Review Tribunal affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa.
The applicant, a citizen of Pakistan, arrived in Australia in September 2007 and applied for a protection visa in October 2008. In his application he claimed to fear harm in Pakistan from the Sipah-e-Sahaba and other radical Sunni Islamic organisations due to his membership of the Shia minority in his area.
The applicant claimed he had been attacked a number of times by radical Sunni groups and threatened to be killed if he continued his support of the Shia group Tahrik-e-Jafria-I-Pakistan (TJP). He moved to the United Arab Emirates in 1990, but returned to Pakistan a number of times thereafter. He claimed he had faced problems on his return and was not able to stay in the one place. He claimed that he feared that he would be killed in Pakistan by a radical Sunni group and that the government was Sunni dominated and would not protect him.
The applicant attended an interview with the delegate of the first respondent. He provided a number of documents in support of his claims, including bail continuation documentation said to have been issued by a Pakistani court in 2000 in a case brought against him after he had an altercation with a person named as Muhammad Iqbal.
The delegate of the first respondent refused the application for a protection visa finding, among other things, that the applicant’s evidence at the interview was inconsistent, contradictory of his written claims and exaggerated, omitted or fabricated in other elements. The delegate also found that adequate state protection would be available and that the applicant could relocate.
The applicant sought review by the Tribunal and attended a Tribunal hearing. The only evidence before the court of what occurred in that hearing is the Tribunal reasons for decision. In its reasons for decision the Tribunal summarised the applicant’s written claims, his claims made at the Departmental interview and the documents he provided, including photocopies of press or internet news documents and details of approximately 16 trips he made between the UAE and Pakistan from 1990 and one trip to London in 2006 where he spent some 19 days before returning to Pakistan.
The Tribunal set out in detail the claims made by the applicant at the Tribunal hearing, including his claim that he became a Shia preacher during his schooling, that he had been beaten up by other high school students in 1990 and attacked by people from Sipah-e-Sahaba during a visit to Pakistan in 2003. He also claimed that in 1999 he had informed the authorities that some organisations wished to kill him, that his complaint was investigated but that after they had arrested a person he named as Zafar Iqbal, the police invented a story that he and Iqbal had a fight at the police station and they were both detained. He claimed that pressure was put on him by his parents to patch up the disagreement and that bail had been obtained for him by his family. He claimed that he returned to Dubai where he had been residing on and off since 1990 (apart from his trip to the United Kingdom in 2006).
The Tribunal recorded that it put a number of issues to the applicant about this claim and that in his response there was a difference between the name of the person described in the bail continuation document and the person he referred to at the hearing. When this was raised the applicant subsequently claimed that the father of the person involved was Muhammad Iqbal and then that both were involved. He claimed that he did not mention the son to the police because he was too young to be charged.
The Tribunal also recorded that the applicant claimed that he went to Britain to obtain protection but did not lodge a claim as he had not felt secure there as he feared charitable organisations run by radical Sunni groups.
The Tribunal recorded that it put concerns about aspects of the applicant’s evidence to him for comment and at the conclusion of the hearing invited him to comment on information or respond to it in any way he liked. The applicant explained that everything he said was true, although he might not have been able to explain things properly.
Before setting out its findings and reasons in relation to the applicant’s claim that if he returned to Pakistan he was afraid the Sipah-e-Sahaba and specifically a member, Muhammad Iqbal who was a member of the Muslim League, would kill him, the Tribunal referred to what it described as “hearing issues”, referring to the fact that at one or two points in the hearing the applicant had claimed to have a defective memory as a result of an operation after an alleged attack in about 2003, but found that there was no documentary substantiation for this claim and nothing to indicate that he had received any treatment for this or any other problem in Australia. The Tribunal found that the applicant was “notably articulate” at the hearing:
… although his replies to questions were at times unresponsive and vague this generally occurred when he was being pressed about aspects of his claims which seemed inconsistent or implausible.
Having observed the applicant the Tribunal was “not satisfied that he was suffering from any particular defect of memory, beyond the normal range of human recall, which would have prevented him from presenting information and arguments to support his claim to be a refugee”.
In its findings and reasons the Tribunal summarised the applicant’s claim to fear harm at the hands of Sipah-e-Sahaba or other Sunni Islamic organisations or political parties allegedly opposed to him because of his Shia religion. However, it was not satisfied as to the credibility of his claims to fear harm in Pakistan. It found the applicant was an “unimpressive witness” at the hearing, that his “evidence was often vague and uninformative” and that he was able to supply “little circumstantial detail” in support of his claims and account of events which gave no impression of having been based on first-hand experience.
The Tribunal stated that it had “a clear impression of evasiveness and a readiness” on the part of the applicant to modify aspects of his evidence when pressed about inconsistencies throughout his oral evidence. These characteristics were said to be present throughout his oral evidence, including in his “confused” account of his schooling in Pakistan in relation to the identity of the person said to be one of his main enemies and the circumstances in which he was able to spend lengthy periods in Pakistan while remaining employed as the manager of a tailor shop in Dubai. It was not satisfied that the applicant’s oral evidence could be relied on or that he was a witness of truth.
The Tribunal considered the applicant’s claims about past harm in an incident in 1989 or 1990 and in about 2003 at the hands of Sipah-e-Sahaba. It found no substantiation for these claims and that the applicant’s account was vague and inconsistent on a number of points. It was not satisfied that, if these dramatic events had occurred, the applicant would have been unable to state with any certainty the year in which they took place or that he would have been unable to describe them in some detail. It also had regard to a notable vagueness in his evidence about the exact source of the harm he feared (when pressed at the hearing he had mentioned Sipah-e-Sahaba but had also suggested there were many people and included as possible agents of harm political parties as varied as the Muslim League and the Pakistan Peoples Party).
The Tribunal was also not satisfied that the applicant’s account at the hearing of his treatment in three different hospitals in 2003 was consistent with the account he gave at the Departmental interview. It did not accept the applicant’s claim that on that occasion he had been misunderstood.
The Tribunal was not satisfied that the alleged incidents occurred or that the applicant ever experienced harm at the hands of Sipah-e-Sahaba members as he claimed.
The Tribunal stated that in reaching this conclusion it had had regard to the documents the applicant submitted which were said to relate to a complaint lodged by him with the military authorities complaining that certain people in Pakistan were threatening to kill him. It found, however, that these documents related to a court case brought against the applicant for an apprehended breach of the peace in a dispute with a person named Muhammad Iqbal who was said to have been harassing and threatening the applicant who took legal action against him. The Tribunal noted that the papers stated that bail had been given to the applicant. While the Tribunal found that these documents were generally consistent with the applicant’s claim to have lodged a complaint against another person in 1999 and to have been accused of fighting with this person, it was not satisfied that the documents supported his claim to be at risk of harm in Pakistan. The Tribunal found it significant that at the Tribunal hearing the applicant had appeared unsure about the identity of the person with whom he was said to have had this dispute, naming him both as Muhammad Iqbal and Zafar Iqbal and that when the inconsistency was drawn to his attention the applicant had tried to explain it by claiming that the named persons were father and son, that they were both involved and that Zafar was not identified in the documents because (although he was an adult) he was too young to be named. The Tribunal was not satisfied that this explanation was credible. It found that it was adopted by the applicant after he failed to remember the identity of the person that he was meant to have fought with and that this cast strong doubt on the applicant’s credibility and on the authenticity of the documents.
The Tribunal also considered the fact that the applicant made a new claim at the hearing that he had been an “active” Shia and that he had been a preacher (when asked why he would be singled out for harm as a member of the Shia community). It was not satisfied that the circumstances of attending a madrassa, his father holding a leadership position in the local community, or his interrupted study for a BA degree lent any support to the claim that the applicant was a preacher. The Tribunal was not satisfied that the applicant was ever a Shia preacher or activist as claimed, or that there was anything about his practice of religion which would make him a target for Sunni terrorists.
The Tribunal referred to the fact that the applicant made no reference at the hearing to claims in his protection visa application that he was accused of being a member of the Shia terrorist group, the TJP, or that he was accused of financing Shia groups. It was not satisfied that such an accusation was made.
The Tribunal found that the applicant’s action in returning to Pakistan from Dubai 16 or 17 times and staying in Pakistan for up to six months at a time did not appear to be consistent with the reactions of a person who had a genuine fear of being harmed. It was not satisfied that the applicant’s explanation that he arrived at different airports, lived in many locations and returned to his home in secret provided a satisfactory explanation as to why he would risk voluntarily returning and remaining for such extended periods if he genuinely feared harm in Pakistan. Nor was it satisfied that it was plausible that if he wanted to be reunited with his family he would have lived in hiding in so many locations that were distant from his home or have been able to avoid harm by visiting his family in secret.
The Tribunal also had regard to the applicant’s failure to seek protection in the United Kingdom in 2006 as casting strong doubt on his claim to fear harm in Pakistan. It rejected as “entirely fanciful” his claim that he was dissuaded from claiming protection in the UK when he encountered pamphlets from charitable Islamic organisations and became worried about his safety there.
It also found that the applicant’s delay of over a year in seeking protection in Australia was not conduct consistent with that of a person who had genuine fear of serious harm in Pakistan. It rejected his explanation that he delayed his application because he feared Muslim organisations were established in Australia.
The Tribunal concluded that on all the information before it, it was not satisfied that the applicant had ever suffered harm in Pakistan at the hands of Sunni Islamic groups because of his Shia religion or for any other reason. It was not satisfied there was anything to indicate that he would suffer harm for such a reason or for any other reason if he were to return to Pakistan. The Tribunal affirmed the decision not to grant the applicant a protection visa.
The applicant sought review by application filed in this court on 15 June 2009. He relies on the grounds in that application. He did not file an amended application or written submissions. When given an opportunity to make oral submissions today he did not address the grounds in his application, but sought to put before the court the originals (in Urdu) of documents already provided to the Department and the Tribunal, in particular the documents in relation to the bail continuation to which I have referred. He asserted that his documents were genuine and that all that he had said was true.
As I endeavoured to explain to the applicant, merits review is not available in this court and factual findings are a matter for the Tribunal. He was unable to explain how the originals of these documents would assist the court to determine whether the Tribunal made a jurisdictional error on the material before it at the time of its decision.
I have considered the grounds in his application and other matters addressed by the solicitor for the first respondent in submissions.
The first ground in the application is that the Tribunal failed to comply with s.424A of the Migration Act 1958 (Cth). There are two aspects to this ground. The first appears to be an assertion that the Tribunal undertook to give the applicant an opportunity to make a written submission about inconsistencies in his evidence.
However, as the solicitor for the first respondent pointed out in oral submissions, there is no evidence before the court that the Tribunal gave any such undertaking. The Tribunal’s account of what occurred in the Tribunal hearing of 30 April 2009 does not support this claim. Insofar as the applicant appears to be suggesting that he had no opportunity to make a written submission to the Tribunal prior to its decision, the Tribunal raised with the applicant at the conclusion of the hearing its concern about the accuracy of his claims and invited him to comment or respond in any way he liked, either immediately, at an adjourned hearing, or in writing and told him that he could have more time to do so if he wished, to which the applicant replied that all he had said was true, although he had not been able to explain things properly and that if he returned to Pakistan he would try to lead a normal life. He queried the Tribunal’s responsibility if he suffered harm and when asked if there was anything else he wished to say he was recorded as saying that he believed everything had been covered.
No jurisdictional error is established from the manner in which the Tribunal appears to have conducted its hearing and the opportunities afforded to the applicant to respond to dispositive issues or information. This aspect of the claim is not made out on the material before the court.
Nor is the assertion that the Tribunal failed to comply with s.424A of the Act established. As the High Court stated in SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190; [2007] HCA 26 at [18], information for the purposes of s.424A(1) does not include “the existence of doubts, inconsistencies or the absence of evidence”. Moreover the inconsistencies identified by the Tribunal arose from the evidence the applicant gave to the Department and to the Tribunal which fall within the exceptions in sub-sections 3(b) and (ba) of s.424A of the Act.
The applicant has not pointed to, nor is it apparent, that s.424A(1) applied to any other information such as to give rise to an obligation under s.424A of the Act. This ground is not made out.
Ground two is that the Tribunal “did not use the country information as aspecific (sic)” and that general information gathered by the Tribunal was considered to weigh against his case in the final outcome. Insofar as this might be intended to take issue with whether or not the Tribunal referred specifically to the country information provided by the applicant, the Tribunal did refer to the documents the applicant provided, including items of country information. The choice and assessment of country information is a matter for the Tribunal, as is the weight to be given to particular items of country information.
Insofar as this ground might be intended to take issue with the fact that the Tribunal referred in its account of the hearing to country information about falsified documents in Pakistan, it is apparent from the Tribunal’s account of the hearing that the substance of that information was discussed with the applicant at the hearing. As set out above, the Tribunal ultimately placed no weight on the documents submitted by the applicant relating to a complaint lodged by him, having regard to inconsistencies between their contents and the applicant’s oral evidence which it found cast doubt on the applicant’s credibility and the authenticity of the documents. It was open to the Tribunal to proceed in this manner and, indeed, to have regard to country information about falsified documents in Pakistan. It did not simply reject the documents based on its adverse view of the applicant’s credibility, but assessed the documents independently and relied on inconsistencies between the documents and the applicant’s oral evidence (see Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165; [2003] HCA 30). Ground two is not made out.
Ground three is that the decision “was unjust and was made without taking into account the full gravity of [the applicant’s] circumstances and the consequence of the claim”. Insofar as this ground seeks to agitate the merits of the Tribunal’s decision, merits review is not available in this court (see Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Others (1996) 185 CLR 259; [1996] HCA 6). Contrary to the applicant’s contention, the Tribunal considered the applicant’s claims to fear persecution in Pakistan and gave a number of reasons for its adverse credibility findings which were open to it on the material before it for the reasons which it gave. Ground three is not made out.
Ground four is that the Tribunal failed to investigate the applicant’s claim, “specially the grounds of persecution, in Pakistan” and that therefore its decision was affected by actual bias. The Tribunal is under no general obligation to investigate an applicant’s claims. It is for an applicant to put before the Tribunal such material as is necessary to persuade the Tribunal of his or her claims and for the Tribunal to determine whether it is satisfied that the criteria for the protection visa are made out.
There is nothing in the circumstances of this case to give rise to an obligation on the Tribunal to verify or further investigate the applicant’s claims. In those circumstances, the claimed failure to investigate does not establish actual bias in the sense considered by the High Court in Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17. Such a serious allegation has to be firmly and distinctly made and clearly proven. It would be a rare and exceptional case for it to be established simply on the Tribunal reasons for decision and this is not such a case. The material before the court does not provide a foundation for a claim that the Tribunal approached the matter with a closed mind or did not conduct its review in good faith.
Nor is the material before the court such as to establish apprehended bias from the perspective of the appropriately informed reasonable observer. This ground is not made out.
While not in the application, in his affidavit the applicant also contended that the Tribunal failed to assess or carry out the real chance test before dismissing his claim. This contention is not made out. In determining whether there is a real chance that an event will occur in the future, the degree of probability that similar events have or have not occurred in the past is relevant. The Tribunal properly had regard to such matters in making findings of fact based on an assessment of the applicant’s claims and then speculation as to the reasonably foreseeable future. Based on its assessment of the applicant’s evidence, and in particular the inconsistencies in his evidence, the Tribunal was not satisfied that the applicant had ever suffered harm in the past in Pakistan as he claimed for the reasons that he claimed. In particular it was not satisfied that the applicant ever suffered harm in Pakistan at the hands of Sunni Islamic groups because of his Shia religion or for any other reason. It was open to the Tribunal to conclude on this basis that it was not satisfied that the applicant had a well-founded fear of persecution should he return to Pakistan now or in the reasonably foreseeable future because of his religion. I note that the Tribunal went on to point out that the applicant did not claim to fear harm for any other reason and no other reason was apparent on the face of the information before the Tribunal. It has not been established that the Tribunal erred in the manner in which it assessed the applicant’s claims.
For the sake of completeness I note also that the first respondent’s submissions addressed the Tribunal’s approach to the issue of delay, in particular the fact that the applicant failed to seek protection in the United Kingdom and then did not seek protection in Australia until more than a year after his arrival. These matters were found to be inconsistent with his claimed fear of harm. However the Tribunal did not treat such delay as conclusive. It was open to it to take delay into account as a relevant factor when assessing the applicant’s credibility and fear of persecution. Having regard to all the other matters relied on by the Tribunal, in particular the inconsistencies in the applicant’s claims, the delay alone could not be said to have conclusively decided the question of the applicant’s credibility.
In addition, as submitted for the first respondent, there is no evidence that the applicant was prevented from participating in the Tribunal hearing such that the hearing invitation was not real and meaningful in the sense considered in Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553; [2003] FCAFC 126. As set out above, the Tribunal considered the applicant’s claim that he had a defective memory as a result of an operation, but was not satisfied that he was suffering from any particular defect of memory that would have prevented him from presenting information and arguments to support his claim. Again, such a finding was open to the Tribunal and there is no evidence before the court such as to indicate any failure by the Tribunal to comply with s.425 of the Migration Act.
As no jurisdictional error has been established, the application must be dismissed.
RECORDED: NOT TRANSCRIBED
The applicant has been unsuccessful and the Minister seeks costs in the sum of $4,000. The applicant told the court that he did not have this much money. However the applicant’s lack of funds is not, in the circumstances of this case, a reason for departing from the normal principle that an unsuccessful applicant should meet the costs of the first respondent, although it may be a matter to be taken into account by the Minister in determining when and how to seek to recover such costs. The amount sought is appropriate in light of the nature of this and other similar matters.
I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date: 18 November 2009
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