SZNSC v Minister for Immigration
[2009] FMCA 945
•25 September 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNSC v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 945 |
| MIGRATION – Review of decision of Refugee Review Tribunal – whether Tribunal failed to take into account a relevant consideration – whether Tribunal needed to refer to relevant documents – whether documents formed only part of “background narrative” – whether claim had been “abandoned” – whether a finding about particular matter was subsumed in findings of greater generality – whether conclusions as to credibility were open on available material – whether applicant seeks impermissible merits review – whether Tribunal under duty to inquire – no jurisdictional error – application dismissed. |
| Migration Act 1958 (Cth), ss.422B, 425, 424A, 430, 65, 36(2) |
| Applicant WAEE v Minister for Immigration and Multicultural Affairs and Indigenous Affairs [2003] FCAFC 184 WAGJ v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 277 |
| Applicant: | SZNSC |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1522 of 2009 |
| Judgment of: | Nicholls FM |
| Hearing date: | 18 September 2009 |
| Date of Last Submission: | 18 September 2009 |
| Delivered at: | Sydney |
| Delivered on: | 25 September 2009 |
REPRESENTATION
| Appearing for the Applicant: | In person |
| Appearing for the Respondents: | Mr R Baird |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application made on 26 June 2009, and amended on 18 September 2009, is dismissed.
The applicant pay the first respondent’s costs set in the amount of $4550.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1522 of 2009
| SZNSC |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made on 26 June 2009 under the Migration Act 1958 (Cth) (“the Act”), and amended on 18 September 2009, seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”), 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. He arrived in Australia on
9 November 2008 and applied for a protection visa on 17 December 2008 (Court Book – “CB” – CB 1 to CB 33, including a statement by the applicant in support of his application).
Claims to protection
The applicant’s claims to protection were that about two years earlier he had “converted to Shia religion”. He had previously been a Sunni Muslim. He claimed that he feared harm from Sunnis who were “Jihadis”, and who were engaged in violent activities, because while he had been previously trusted by these people, and had overheard them discussing the commission of violent acts, he was no longer trusted by them because of his religious conversion.
The delegate
The delegate found that she was not satisfied that the applicant was a “genuine convert from Sunni Islam to Shia Islam” (CB 56). This was based on the applicant’s inability to answer “some very straightforward questions despite prompting on several occasions”, the fact that his responses were “often vague and confused”, and that he was “unable to adequately demonstrate an understanding of the differences between Shia and Sunni prayer rituals” (CB 56).
The delegate also found that the applicant’s response as to his reason for converting was simplistic. Further, the applicant’s level of relevant understanding and knowledge was such that she concluded that his claim of conversion “has been fabricated in order to enhance his chances of obtaining a Protection visa” (CB 57).
As a result, the delegate did not accept that he was a genuine convert, and did not accept that he had suffered harassment in Pakistan for religious reasons, or that he would be targeted by Sunni fundamentalist elements as he claimed if he were to return (see CB 56 to CB 57).
The Tribunal
The applicant applied for review by the Tribunal on 24 March 2009 (CB 67 to CB 70). He was invited to, and attended, a hearing before the Tribunal on 18 May 2009 (CB 84). The Tribunal’s account of what occurred at the hearing is set out in its decision record ([8] at CB 105 to [29] at CB 108).
The Tribunal understood that the harm that the applicant claimed to fear stemmed from his alleged conversion from a Sunni to a Shiite Muslim in Pakistan ([43] at CB 110). The Tribunal rejected the applicant’s claim to have converted. The Tribunal reasoned that the type of conversion claimed by the applicant required a: “deep seated conviction which moves a person to leave one religion in favour of the other”, and that such a conversion: “would have been based on the rational analysis of the understanding of the Shiite Islamic faith which led to the conversion” (at [44] at CB 111). The Tribunal found that throughout the hearing before it, and in the applicant’s written “testimony”, such “rational analysis is absent” ([44] at CB 111).
The Tribunal also found that it was of greater significance that the applicant was not able to give a coherent reason for his conversion. It found that its doubts as to his credibility were reinforced: “by the fact that when asked common and fundamental questions about the differences between the Shiite faith and the Sunni faith the applicant was not able to answer these questions” ([44] at CB 111).
The Tribunal noted that, in particular, at the hearing the applicant was unable to answer questions as to the differences between the two practices, and that it did “not find it persuasive” that the only difference that the applicant could proffer as between the two practices of Islam was that “one gives birth to terrorists, while the other one does not” ([45] at CB 111).
The Tribunal also referred to the applicant’s failure to answer “fundamental questions” as being reinforced by what it described as “his strange response to the difference between the Shiites and the Sunnis with respect to seeing Allah after death”. The Tribunal noted that although it “attempted to explain the differences between the religions” in this respect, the applicant was “still not able to tell the Tribunal the Shiite philosophy with respect to seeing Allah after death” ([46] at CB 111).
Further, the Tribunal noted that at the hearing when “asked basic questions about the fundamental differences between the two religions with respect to succession of the prophet the applicant was not able to give any coherent explanation as to the difference between the two religions” ([47] at CB 111).
In all therefore, on the basis of the applicant’s evidence, the Tribunal was not satisfied that the applicant had converted from the Sunni to Shiite practice of the Islamic religion ([47] at CB 111).
The Tribunal further found, undermining the applicant’s claims, that the applicant was not a particularly religious person (that was his own evidence), leading it to question that if that was the case, what motivation “could have driven him to convert from being a Sunni to a Shiite” ([49] at CB 112).
Further, the Tribunal noted the applicant’s claims that he had not practiced the Shiite religion for “too long”, and had only recently converted, and that with practice he would know more about the religion. In context, the Tribunal found that these “remarks” by the applicant: “go to undermine the credibility of his claims” ([49] at CB 112).
In all therefore, based on the evidence, both oral and written, provided by the applicant, the Tribunal was not satisfied that the applicant had converted to the Shiite practice of Islam, and that therefore, on that basis, was not satisfied that he faced persecution in Pakistan as a result of his religious beliefs ([50] at CB 112). When read, at least fairly, therefore, the Tribunal rejected the applicant’s factual claims to fear harm from extremists because of his claimed conversion.
Application before the Court
The applicant’s original application to this Court puts forward the following grounds:
“1. The Refugee Review Tribunal denied the Applicant procedural fairness by reaching adverse conclusion that the applicant was not a witness of truth, being conclusions that were not obviously open on the known material, without giving the applicant opportunity to be heard in respect of those matters.
2. The Tribunal had no jurisdiction to make the said decision because its ‘reasonable satisfaction’ was not arrived in accordance with the requirements of the Migration Act
3. The Tribunal’s decision was unjust and was made without taking into account the full gravity of applicant circumstances and the consequence of the claim.
4. The applicant satisfy the four key elements of the Convention definition as detailed in page 2 and 3 of the Tribunal decision. The Tribunal has not consider this aspect and therefore committed factual and legal error.
5. The RRT has failed to investigate applicants claim specially the grounds of persecution in Pakistan. Therefore, the Tribunal decision dated 6 June 2009 was effected by actual bias constituting jurisdictional error”.
[Errors in the original]
In addition, I also note that, in his affidavit accompanying his application, the applicant also complained:
“The Tribunal member failed to analyse properly the ‘future harm’ I may face if I have to go back to Pakistan. Hence, due to this failure, the Tribunal has committed a serious jurisdictional error by failing to assess or carry out the ‘real chance’ test, before dismissing my claims”.
When this matter first came on for hearing on 15 September 2009, the applicant sought an adjournment so that he could obtain an amended application, which he said was to be settled by the lawyer appointed to provide advice to him under the Court’s RRT Legal Advice Scheme.
The adjournment was granted. The final hearing resumed on 18 September 2009.
At the resumption of the hearing the applicant appeared in person. He was assisted by an interpreter in the Urdu language. Mr R Baird appeared for the first respondent.
The applicant was granted leave to file an amended application. He confirmed that it contained the only ground that he wished to press. The ground is:
“The Tribunal failed to take into account a relevant consideration, and thus failed to exercise its jurisdiction in failing to consider and make findings in relation to material provided which corroborated the Applicant’s claim (bundle of relevant documents; pages 38-45).”
The documents
The documents in question are reproduced at CB 38 to CB 45. They are:
1.The applicant’s “Membership Card” with the “Tehreek-E-Jaferiya” (“TJP”) dated “17-6-2001” (a Shia political organisation) (CB 39 to CB 40; English translation CB 38).
2.A copy of a notice of “Transfer/Posting” from his employer (the Pakistan Telecommunication Company Limited) dated “03 Sep 2007” (CB 41).
3.A copy of a notice of “Transfer/Positing” with the same company dated “09 June 2007” (CB 42).
4.A copy of a translation of a letter from the President of TJP to the applicant dated “5/12/2001”. This refers to a meeting on “April 15 2001” (CB 43).
5.A copy of a translation of a letter from the President of TJP to the applicant dated “5/12/2001”, referring to a meeting on “January 8, 2002” (CB 44).
6.A copy of a notice from his employer (the Pakistan Telecommunication Company Limited) dated “28-01-2008” confirming that a number of employees (including the applicant – listed at number 6) were no longer employed, following acceptance of voluntary redundancy (CB 45). (Or, as described by the applicant, the “golden handshake”.)
For ease, the documents can be described as following within two categories:
1. The Employment Documents: Items 2, 3 and 6 above.
2. The Shiite Political Organisations Documents: Items 1, 4 and 5 above.
The applicant’s submissions
The applicant was invited to explain how the Tribunal’s alleged failure to consider and make findings in relation to the documents referred to in the amended application showed that the Tribunal failed to take into account a relevant consideration.
The applicant submitted that the documents from his previous employer demonstrated that, after his conversion, on a number of occasions he had been required to change the location of his employment because of his fear of persecution from the “Taliban”.
The applicant explained that although he may have used the word “terrorists” at the Tribunal hearing, and now used the term “Taliban”, that these, along with term “Jihadists”, should be understood as referring to the same group of people. That is, whichever of these terms is used, they refer to the same group from whom the applicant claimed to fear harm because of his claimed conversion.
The applicant submitted that he had converted because of his belief that the “Shiite faith” does not produce terrorists, whereas the “Sunni faith” does. He stated that the Tribunal did not believe that he had converted, because it did not believe that he had a reasonable knowledge of the Shiite faith. He reiterated before the Court that the point of his conversion was that the Shiite faith did not produce terrorists.
The applicant argued that because of his conversion, he had faced persecutory harm. He submitted that the documents he provided in support of his claim had not been considered by the Tribunal, and that this constituted a failure to take into account a relevant consideration.
The respondent’s submissions
Mr Baird submitted that the documents now referred to by the applicant formed only a “background narrative” to his claim of conversion, and the subsequent harm that was said to have followed. The Tribunal was not required to address every piece of evidence in its decision record. It addressed the claims as was required. The respondent noted that, in his statement which was provided at the time of his application for a protection visa, the applicant had claimed to work for a telecommunications corporation in Pakistan (CB 32). The applicant stated that “several Jihadis” visited his workplace during this time to use the phone there, as it was “usually untraceable”. It was after his conversion that this group of men started to abuse and threaten the applicant.
The respondent submitted that the applicant had not raised his claimed involvement with a “Shiite political organisation” in this statement.
At about the time the applicant was interviewed by the delegate, he submitted the documents which were said to support his claim.
Following an interview with the applicant, the delegate provided a summary of the applicant’s claims (CB 50 to CB 51). Relevantly, it was noted that:
“In 2001, before he had officially converted to the Shia faith, the applicant became a member of the Shia political group, Tehrik-e-Jafria (TJP). This organisation has since been banned in Pakistan”.
Mr Baird submitted that the delegate had concluded that the applicant was not a genuine convert from Sunni Islam to Shia Islam. It was noted that the applicant’s claimed involvement with the TJP was not raised in his protection visa application, and that it was not accepted that such significant information would have been omitted if it was genuine. Also, the delegate did not consider it credible that the applicant, who was a Sunni at the relevant time: “would be permitted to become an official member of the Shia organisation”.
Further, taking into account relevant country information, the delegate noted that it was possible to obtain many types of fraudulent documents in Pakistan. For these reasons, the delegate was not satisfied that the documents provided by the delegate supported his claim of a well-founded fear of religious based persecution in Pakistan (CB 57).
The respondent submitted that at the hearing before the Tribunal, the applicant did not raise the issue of his claimed involvement in the “Shiite political organisation”. It was suggested that the Court should give weight to the fact that the applicant had only raised this issue with the delegate, and not in his protection visa application or before the Tribunal.
Mr Baird argued, therefore, that it was not necessary for the Tribunal to address the “background narrative” which was said to be found, in part, in the documents referred to by the applicant.
The Tribunal expressed no doubt as to the truthfulness of the applicant’s claim to have worked for a telecommunication corporation, or his multiple transfers with this employer. Therefore, it was said that there was nothing to give rise to a claim that it failed to consider a relevant consideration in respect to these documents.
With respect to the applicant’s claimed involvement with the “Shiite political group” and the documents which were said to corroborate this, the respondent emphasised that this was only raised on the one occasion with the delegate. Further, it was not now being argued by the applicant that this was a separate claim that should also have been considered by the Tribunal.
Given the failure of the applicant to raise his claimed membership of this group before the Tribunal, it was submitted that this claim had been abandoned by the applicant.
In the alternative, the respondent submitted that if this element of his claim had in fact survived up to, and including, the hearing, it nonetheless formed only a part of the “background narrative” of his factual account.
In either event, the Tribunal was not required to refer to the documents concerning the claimed membership of this group in its decision record.
In support of this position, the responded relied upon Applicant WAEE v Minister for Immigration and Multicultural Affairs and Indigenous Affairs [2003] FCAFC 184 (“WAEE”). In particular, the Court was referred to the following:
“46. It is plainly not necessary for the tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons.”
And also:
“47. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected.”
It was also submitted that, even if the applicant’s claim to have been a member of a Shitte political party had survived, it was nonetheless unnecessary for the Tribunal to refer to the evidence which the applicant now relied upon in his amended application. The Tribunal made a “detailed” finding that the applicant had not converted as claimed (see especially [43] at CB 110 to [49] at CB 112 of the Tribunal’s decision record). In light of this strong finding that it was not satisfied with the applicant’s claim to be a convert, it was not necessary for the Tribunal to make a finding as to the claimed membership of the Shiite political group. This was because this particular matter had been subsumed into the finding that he was not a genuine convert.
Consideration
The amended application
The applicant’s complaint is that he submitted “a bundle of relevant documents” in support of his claim, which was not considered by the Tribunal in reaching its decision that he was not a genuine convert, and subsequently, did not have a well-founded fear of persecutory harm. This was said to amount to a failure to take into account a “relevant consideration”.
I note first that this is not an instance where it can be said that the Tribunal concluded that, because the applicant “thoroughly lacked credibility”, what was proffered by the applicant as corroborative evidence was given “no weight because the well had been poisoned beyond redemption” (Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 198 ALR 59 at [49] per McHugh and Gummow JJ; see also WAGU v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 912 at [36] per French J).
The Tribunal did not find that the applicant had lied or misled it, or that his credibility had been fatally weakened. Rather, the Tribunal was not satisfied, on the basis of the evidence before it, that the applicant had converted ([50] at CB 112). For instance, the Tribunal noted that the applicant’s account and explanations were: “simply not persuasive enough” ([48 at 112; see also [45] at CB 111), and that, amongst other things, he had not been able answer: “common and fundamental questions about the differences between the Shiite faith and the Sunni faith” ([44] at CB 111).
The applicant’s complaint then, is not that the Tribunal chose to give no weight to what was claimed to be “corroborative evidence” because it had reached an adverse finding as to his credibility. It is that, in failing to refer to the corroborating evidence at all, it failed to take into account a relevant consideration.
The employment documents
As I understood the applicant’s submission before the Court, the Tribunal was required to consider the employment documents because they were relevant to the question of whether he was a genuine convert. That is, that the employment documents corroborated his account that he was required to relocate his place of employment within Pakistan because of his fear of persecutory harm, which was side to have arisen because of his religious conversion.
It is well established that a failure to take into account a relevant consideration is not established just because some piece of evidence is not dealt with, or even not treated as the applicant would wish. Further, that a failure to consider a claim that the Tribunal is obliged in the proper exercise of its jurisdiction to consider, is not made out by a failure merely to attend to evidence (Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196; (2001) 113 FCR 396 at [78] to [79]; MZWBW v Minister for Immigration and Multicultural and Indigenous Affairs[2005] FCAFC 94 at [26] to [28] per Black CJ, Sundberg and Bennett JJ. See also Htun v Minister for Immigration and Multicultural Affairs[2001] FCA 1802; (2001) 194 ALR 244 (“Htun”) at [42] per Allsop J, with whom Spender J agreed).
As was noted in Rezaei v Minister for Immigration and Multicultural Affairs [2001] FCA 1294 at [57] per Allsop J, what was said in Minister for Immigration and Multicultural and Indigenous Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 231:
“… does not stand for the proposition that a relevant consideration has not been taken into account and the decision-maker thereby has failed to embark on or complete his or her jurisdictional task merely because some piece of evidence which the court thinks is relevant in the evidential or probative sense can be seen not to have been weighed or discussed. ‘Relevant’ for this purpose means that the decision-maker is bound by the statute or by law to take this into account.”
This passage was approved in Thirukkumar v Minister for Immigration and Multicultural Affairs [2002] FCAFC 268 at [29] per Cooper and Finkelstein JJ.
The respondent referred the Court to the following paragraphs from WAEE:
“46. It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [87]-[97]) and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The Tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised ‘with an eye keenly attuned to error’. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.
47. The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.”
As was pointed out in SZMPF v Minister for Immigration and Citizenship [2009] FCA 908 with reference to these paragraphs:
“9. These observations have been repeatedly approved and applied by subsequent decisions of this Court, e.g. SZMHL v Minister for Immigration and Citizenship [2009] FCA 581 at [18] per Perram J; SZMDB v Minister for Immigration and Citizenship [2008] FCA 1937 at [40], 105 ALD 499 at 506 per Graham J; MZXCL v Minister for Immigration and Citizenship [2008] FCA 1770 at [13] per Buchanan J; Jayasinghe v Minister for Immigration and Multicultural Affairs [2006] FCA 1700 at [39] per Middleton J; Applicant M31 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 533 at [22] per Weinberg J.”
In light of the above authorities, I agree with the respondent that in the current case the Tribunal was not required to specifically refer to the employment documents in its decision record, and their omission is not a failure to take into account a relevant consideration.
The employment documents do not give any reasons for the applicant’s relocation, or his acceptance of the “golden handshake”. At no point in its decision record did the Tribunal challenge, or even doubt, that the applicant had relocated within Pakistan, before eventually accepting a severance package from his employer. What is, in my view, significant, is that these documents do not provide any evidence for the applicant’s claim that he relocated because of a fear of persecutory harm.
They are certainly evidence of his employment history. But this was not in dispute before the Tribunal, such as to make the failure to specifically refer to them a failure to take into account a relevant consideration, or even an integer of the applicant’s claims.
During the hearing, the Tribunal discussed with the applicant the fact that he had moved from his home village to Lahore, only to later return back to his home village. The applicant claimed to have left Lahore because he “could not adjust”, and because on one occasion he was threatened there by one of the men who used to come into his workplace back in his home village ([21] at CB 107).
The Tribunal pointed out that if the applicant had feared harm in Lahore, it was “not logical” that he would return to his home village, which was a place he claimed he had left previously because he felt “insecure” there ([23] at CB 107). The applicant’s response was that there were people in his home village who could help him, whereas he “could have been killed in Lahore and no-one would have noticed” ([23] at CB 107). The Tribunal further noted to the applicant that it seemed “implausible” that he would have moved back from Lahore on the basis that he had been confronted by an individual on only one occasion ([29] at CB 108).
It is true that the Tribunal did not discuss the employment documents, or the issue of the applicant’s relocation within Pakistan, in its “Findings and Reasons”. However, at least on a fair reading of the only account of the hearing now before the Court, what I take from the Tribunal record is that the Tribunal was not satisfied that the applicant had moved back to his village for the reasons that he claimed. While the Tribunal did not doubt that such a relocation had occurred, it was not convinced that this was because of a fear of persecutory harm. That is, that he was fearful of being targeted because of his conversion.
On their face, the employment documents provide no evidence to support the applicant’s submission now that the documents support his claim to have moved around Pakistan because of his fear of persecutory harm.
The documents attest to the fact of the applicant’s workplace locations (or at least, the notice of his postings or relocations), and to his having taken a “golden handshake”. But they are silent as to the reasons for these events. There is clearly nothing in these documents to support the applicant’s claims now that he moved the location of his employment, and ultimately ceased his employment, because of his fear of the “Taliban” or the “Jihadis”.
Further, any plain reading of the Tribunal’s account of the hearing (unchallenged by any other evidence brought by the applicant) reveals that the applicant’s claim was to fear persecutory harm from the “Jihadis” because of his religious conversion (see [14] at CB 106).
The Tribunal clearly found, on the basis of the evidence before it, that it could not be satisfied that the applicant was a genuine convert. It set out extensive reasons for this finding. These included that the applicant had been unable to offer a “rational analysis” of an understanding of the Shiite faith, he was unable to give a “coherent reason” for his claimed conversion, his inability to answer: “common and fundamental questions about the differences between the Shiite faith and the Sunni faith” ([44] at CB 111), his insistence that the fundamental distinction between the Sunni faith and Shiite faith was that: “one gives births to terrorists while the other does not” ([45] at CB 111), his “strange responses to the differences between the Shiites and the Sunnis with respect to seeing Allah after death” ([46] at CB 111) and his claim that ‘he is not a particularly religious person” ([49] at CB 112).
On what is before the Court, the Tribunal’s findings as to the applicant’s claimed conversion were findings of fact made within jurisdiction. These were findings of fact “par excellence” (Re Minister for Immigration and Multicultural Affairs; Ex Parte Durairajasingham [2000] HCA 1; (2000) 74 ALJR 405 (“Durairajasingham”) at [67] per McHugh J). The Tribunal gave cogent reasons for its findings, which were open to it on what was before it (“Kopalapillai v Minister for Immigration and Multicultural Affairs [1998] FCA 1126; (1998) 86 FCR 547 (Kopalapillai”) at 558 to 559; W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703; [2001] FCA 679 (“W148/00A”) at [64] to [69] per Tamberlin and Nicholson JJ).
Ultimately, s.430 of the Act requires the Tribunal to record its decision. Relevantly, the Tribunal is required to set out the “findings on any material questions of fact” (s.430(1)(c)) and to refer to: “the evidence or any other material on which the findings of fact were based” (s.430(1)(d)).
This is what the Tribunal did. The applicant claimed to fear persecutory harm if he were to return to Pakistan because of his conversion. The Tribunal did not accept that the applicant had converted. The employment documents, in and of themselves, provided no evidence that the applicant had converted, nor that he feared harm because of this conversion.
The employment documents certainly go the fact of the applicant’s employment, to his having worked in different locations, and to the cessation of his employment. But they do not go to the issue of his conversion. The employment documents do not go to, let alone establish, the motivation of the applicant in his relocation in Pakistan. Evidence that the applicant had relocated, on its own, was not evidence that the Tribunal needed to expressly refer to in reaching a conclusion that the applicant had not converted.
In this respect, I am also mindful that an inference that the Tribunal failed to consider an issue is one that should: “not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point” (WAEE at [47]). In my view, the Tribunal clearly considered the relevant central issue, which was whether the applicant had a well-founded fear of persecutory harm because of his claimed religious conversion. That is what the Tribunal considered. Beyond being part of the “background” as the Minister submits, the employment documents were not on their face relevant to this issue. The issue which was determinative of the review.
The Shiite political organisation documents
First, I should note that the amended application does not allege that the applicant’s membership of a Shiite political organisation naturally gave rise to a separate and individual claim which the Tribunal should have considered (see NABE v Minister for Immigration Multicultural and Indigenous Affairs (No.2) [2004] FCAFC 263 (“NABE”) at [68]). That is, that the applicant feared persecutory harm on the basis of a political opinion or membership of a particular social group. The applicant did not make this submission to the Court, and on the evidence available, there is no basis for the Court to conclude that such a separate claim can be said to have arisen.
This view is supported by the fact that, as the respondent noted, the applicant did not raise this issue either in his visa application or before the Tribunal. There is also no evidence that the applicant claimed to fear harm from the “Jihadis” because of his claimed membership of this Shiite political organisation.
At the interview with the delegate the applicant is reported to have raised for the first time that he had become a member of a Shiite political organisation in 2001 (CB 57.4).
The delegate rejected this claim as not being credible (CB 57.5).
The delegate separately had concerns about the Shiite political organisation documents provided in support. The delegate found that these documents did not support his claims (CB 57.7).
There is nothing in the material before the Court to show that the applicant pressed this matter before the Tribunal.
There is nothing to show that this was expressly abandoned before the Tribunal. Conversely, when the applicant was separately asked at the hearing why he feared persecutory harm if he were to return to Pakistan, his only reported (and unchallenged) answer was: “He repeated the claims in his written testimony that he converted to the Shiite religion and now he fears terrorist attacks against him” ([14] at CB 106).
As I understand it, the applicant’s claim to have been a member of a Shiite political organisation is now said to be relevant to his application in the following way. The fact that he had become a member of a Shiite political organisation in 2001 showed a propensity, or at least a willingness, to embrace or accept, Shiite philosophy. It was in this light that the Tribunal should have considered his claimed religious conversion in 2007.
What should be noted first, is that this was not a religious group, but a political one. Second, the applicant had not provided any evidence to the Tribunal, or even claimed that his involvement in this Shiite political organisation required, or fostered, an interest or knowledge in the Shiite faith. Nor that this was in any way connected to his subsequent claimed religious conversion.
The reasons for his claimed conversion were fully explained at the Tribunal hearing. The Tribunal asked the applicant why he had converted to the Shiite faith. He explained that: “Sunnis preach terrorism and Jihad” ([15] at CB 106). Further, he said that he heard his Shiite work colleagues: “talking about Shiite Islamic activities” and that he: “believed what his colleagues were saying and liked it” ([15] at CB 106). He claimed to have thought about converting “for some time” ([17] at CB 106).
The Tribunal told the applicant that his account lacked detail, and that unless he explained the circumstances of: “how he converted and where and when”, the Tribunal would not accept his claims ([18] at CB 106). The applicant responded by repeating his claims about his Shiite friends in his work place, and that: “he attended functions with his friends” ([18] at CB 106).
The Tribunal clearly raised with the applicant that it had doubts with the account proffered by him with respect to his claimed conversion. Significantly, and despite opportunity, the applicant did not make any reference to, let alone rely on, his claimed membership of a Shiite political organisation to support his claim to have converted to the “Shiite faith”.
The respondent claimed that the applicant had “abandoned” this element of his claim by the time of the hearing before the Tribunal. In this regard I note what was said in SZEIV v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1798 at paragraph 34 per Bennett J:
“A claim made to the Department and referred to in the delegate’s decision would ordinarily be before the Tribunal, however where a claim has been made to the delegate and not advanced at all before the Tribunal, and does not arise from the material before the Tribunal, the Tribunal is entitled to assume that the claim is no longer made. The Tribunal is conducting a review of the delegate’s decision, but on the basis of theclaims advanced and materials before the Tribunal. If aclaim does not so arise and isabandoned, especially where the applicant’s are legally represented, the Tribunal is entitled to take the view that the applicant’s do not make the claim, or aclaim based on that claim.”
In the current case, the applicant was not represented before the Tribunal. In my view however, the absence of a legal or migration representative does not detract from the position that when squarely asked the reason for his claimed fear of harm, the applicant made no mention of his claimed involvement in 2001 with the Shiite political organisation. A claim which the delegate rejected.
The Tribunal had before it the delegate’s decision and made detailed references to it in the decision record ([3] at CB 104 to [7] at CB 105). Significantly, in relation to the Shiite political organisation, the Tribunal said (at CM 105):
“The applicant had provided documentation of his involvement with the Tehrik-E-Jafria. The delegate took the view that the documentation did not seem authentic; he therefore gave it relative value in his decision record. On the basis of the evidence provided in his statement and at interview, the delegate concluded that the applicant does not face a real chance of persecution on his return to Pakistan for reason of his religion.”
Plainly, the Tribunal knew of the applicant’s claim, as part of his narrative account of what occurred in Pakistan given to the delegate, and of the Shiite political organisation documents given in support.
In cannot be said that the Tribunal ignored the documents. What can said is that the applicant did not press this matter before the Tribunal. The Tribunal therefore dealt with the applicant’s claims as presented and as survived before the Tribunal. That is, he feared harm from the “Jihadis” because of his religious conversion. The Tribunal’s rejection of the applicant’s claim to have converted comprehensively dealt with the applicant’s fear of persecutory harm if he were to return to Pakistan.
I agree with Mr Baird therefore, that the Tribunal dealt with the applicant’s claim as put. It did not fail to take into account a relevant consideration. These documents were seen as going to the claim to have joined a political organisation eight years earlier. A factor that, at best, was a historical background, but which cannot be said to have survived before the Tribunal.
But even if it could be said, because it was not expressly abandoned, that it remained a part (albeit a historical part) of the claim to have converted his religion, the Tribunal’s failure to refer to these documents in its “Findings and Reasons” does not reveal error.
The question to which the Tribunal addressed itself was whether it could be satisfied that the applicant was a genuine convert. For the reasons that it gave, it was not. In my view, even if the issue of the applicant’s involvement with the Shiite political organisation “survived” before the Tribunal, this was not the dispositive issue of the Tribunal’s review of the delegate’s decision (see WAEE at [47]).
In light of the material before it, the Tribunal, correctly in my view, identified that the dispositive issue was whether he was a genuine convert. The Tribunal discussed this issue with the applicant (see especially [18] at CB 106 to [19] at CB 107). The Tribunal dealt with this issue at length in its “Findings and Reasons” ([44] at CB 110 to [49] at CB 112). This was the basis on which the applicant’s claim to protection rested. The Tribunal’s finding in this respect was conclusive and definitive, such that a particular finding as to the claimed membership of Shiite political organisation was not dispositive, or even necessary.
I therefore agree with the respondent that it was unnecessary for the Tribunal to consider the particular matter of the membership of the Shiite political organisation or the associated documents, as this was subsumed in its finding of greater generality concerning the claimed conversion.
The Tribunal is, of course, required to deal with all aspects of the applicant’s claims as relevant considerationsin the task that it has been jurisdictionally given to perform (Htun at [42] per Allsop J, with whom Spender J agreed; NABE at [55] per Black CJ, French and Selway JJ, with reference to Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 26; (2003) 197 ALR 389; (2003) 77 ALJR 1088).
That is, claims that are expressly made, or clearly arise from the circumstances presented. In the current case, the Tribunal dealt with the claim that was expressly made and clearly arose. That is, the claim of religious persecution. The two sets of documents either did not go to that issue (the employment documents), or that, at best, were an integer of the applicant’s claim that did not survive before the Tribunal (the Shiite political organisation documents). Even if it could be said that it did, the Tribunal dealt with the issue to which they could be said to relate.
Nor was the claim made by the applicant, either expressly or such that it could be said to clearly arise, that he feared persecutory harm because of his claimed membership of the TJP in 2001, such that the Tribunal was required to separately deal with it and the Shiite political organisation documents.
In all therefore, the sole ground of the amended application is not made out.
The original application
Although the applicant submitted before the Court that he sought to rely solely on the amended application (drafted with legal assistance), I did consider whether the grounds of his original application were of any assistance to him.
Ground One
In ground one, the applicant complains that he was denied procedural fairness. This was said to be because the Tribunal reached adverse conclusions as to his credibility, which were conclusions which were not obviously open on the known material, and that he was not given the opportunity to be heard in respect of these matters.
First, I note that this is a case to which s.422B of the Act applies, making the matters set out in Division 4 of Part 7 the exhaustive statement of the natural justice hearing rule (of course, absent bias) (Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214; [2006] FCAFC 61 at [59] to [67]; SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62 at [8]; SZFDE v Minister for Immigration and Citizenship (2007) 237 ALR; [2007] HCA 35 at [48]; Minister for Immigration and Citizenship v SZMOK [2009] FCAFC 83, in particular at [8] to [18]).
The applicant’s complaint that the Tribunal reached adverse conclusions concerning the applicant’s credibility that were not obviously open on the known material, must be rejected in light of a plain reading of the Tribunal’s decision record.
It is clear that the Tribunal relied on the applicant’s own evidence in forming the conclusion that it could not be satisfied as to the central, or core, part of the applicant’s claim. That is, his conversion. This finding was open to the Tribunal on the basis of the applicant’s own evidence, and was a matter for which the Tribunal gave cogent reasons. Ultimately, the Tribunal is the relevant finder of fact, including on matters of credibility (Durairajasingham). The findings of the Tribunal in this regard were open to it (Kopalapillaiat 558-559; W148/00A at [64] to [69] per Tamberlin and Nicholson JJ). That part of the applicant’s complaint does not really rise above a request for merits review (Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) 185 CLR 259 (“Wu Shan Liang”)).
As to the applicant not being given the opportunity to be heard in respect of the Tribunal’s adverse conclusion, this can only be seen as a complaint that the applicant was denied procedural fairness pursuant to s.425. The leading authority in regard to this matter is SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 (“SZBEL”)).
The applicant is entitled to be given the opportunity to be heard in relation to issues arising in relation to the review. In this regard, those issues that are dispositive or determinative which could not be said to arise from the delegate’s decision must be exposed to the applicant at the hearing before the Tribunal for the Tribunal to thereby comply with its procedural fairness obligation.
If the applicant therefore seeks to complain that the Tribunal’s adverse conclusions as to his credibility were the determinative issue in the review, and that he was denied the opportunity to be heard in respect of this matter, any plain reading of the material before the Court reveals that this complaint must fail.
First, it is clear that, on any plain reading of the delegate’s decision, that the credibility of the applicant’s central claim of religious conversion was an issue before the delegate, and was plainly determinative in relation to the application for a protection visa. Not only did the delegate find that she could not be satisfied that the applicant was a genuine convert from Sunni Islam to Shia Islam (CB 56.6), but also found that the applicant’s claim of conversion “has been fabricated in order to enhance his chances of obtaining a Protection visa” (CB 57.3) I note that in part, and further, that the delegate reached this conclusion because she found that the applicant’s responses in relation to his reasons for converting were “simplistic” (CB 57.1).
This on its own would be sufficient to deal with the applicant’s complaint now.
However, it is also clear that, on the only account of the hearing before the Tribunal put before this Court, that is, the Tribunal’s own account, the Tribunal at least “sufficiently indicated” (with SZBEL at [47] in mind) to the applicant at the hearing before it, that his account of his claimed conversion, and the credibility of the account, was at issue (see, for example, [18] at CB 106 where the applicant was told by the Tribunal “that what he has said lacks detail and that unless he explains the circumstances properly on how he converted and where and when, the Tribunal will not accept his claims”). (See also [26] and [29] at CB 108).
This complaint therefore, does not succeed.
Nor can I see that any other part of Division 4 was engaged. I note in particular, that s.424A was not enlivened. The reason for the Tribunal affirming the decision under review was that it could not reach the requisite level of satisfaction based on the applicant’s oral evidence to it at the hearing, and his “written testimony”, because it could not be persuaded on this evidence that the applicant had converted. Even if s.424A(1) was said to be enlivened, plainly what the applicant told the Tribunal at the hearing falls within the exception contained in s.424A(3)(b), and what he put in his “written testimony”, in context, falls within the exception contained in s.424A(3)(ba) in any event. In all, this ground does not succeed.
Ground Two
In ground two the applicant complains that the Tribunal had no jurisdiction to make the decision that it did, because “its reasonable satisfaction” was not arrived at in accordance with the requirements of Migration Act.
No particulars whatsoever are provided.
The relevant statutory scheme that applies to matters of this type (ss.65 and 36(2) of the Act) requires the Tribunal to reach a requisite level of satisfaction as to the criterion set out, relevantly, in s.36(2). That is, effectively, that the applicant meets the definition of “refugee” as set out in the UN Refugees Convention, such that in these circumstances a protection visa must be granted (SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 at [15] to [16]; NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208 at [4] to [5]; Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73).
In doing this, the Tribunal is not required to uncritically accept any, or all, of the applicant’s claims. Nor is it required to find evidence to “disprove” an applicant’s claims (Randhawa v Minister for Immigration and Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437 at 451).
Further, as has often been said, the proceedings before the Tribunal are not adversarial – they are inquisitorial. Ultimately, it was for the applicant to put forward any evidence or material that he wished the Tribunal to take into account in support of his claim. It was for the Tribunal to decide whether the claim was made out. (See Abebe v Commonwealth[1999] HCA 14; (1999) 197 CLR 510 at 578 ([187]) per Gummow and Hayne JJ and Re Ruddock & Anor; Ex parte Applicant 154/2002 (2003) 201 ALR 437; [2003] HCA 60 at [57] per Gummow and Heydon JJ.)
In reviewing the delegate’s decision, the task of the Tribunal is to consider all claims, and all aspects of those claims, made by an applicant, to give the applicant the opportunity, in the appropriate circumstances, to be heard at a hearing, and to evaluate such claims, evidence, and information as it has before it. On the material before the Court in the current case, the Tribunal complied with these requirements, and made findings that were open to it on the material before it. No error in this regard is revealed in the current circumstances.
Ground Three
In ground three the applicant complains that the Tribunal’s decision was unjust, and made without taking into account the full gravity of the applicant’s circumstances and the consequences of the claim.
Before the Court, the applicant complained that the Tribunal did not understand that he had many Shia friends, and discussed the “Shiite faith” with them. He conceded that his knowledge may not have been “enough”, but that the Tribunal “refused to understand” that the reason he converted was because the “Shiite faith” did not “grow up terrorists”.
The applicant is plainly aggrieved with the Tribunal’s decision and does not agree with its conclusion. Unfortunately, for the applicant, such disagreement on its own does not reveal jurisdictional error on the part of the Tribunal.
The Tribunal took into account the applicant’s claim to have converted, as put by the applicant. The claim that its decision was “unjust”, or that it did not take into account “the full gravity” of his circumstances, or that it did not accept his explanation for his conversion, does not in all the circumstances rise above a claim for impermissible merits review (Wu Shan Liang).
The Tribunal’s findings were open to it on what was before it. The Tribunal gave cogent reasons in support of its findings. In these circumstances, no jurisdictional error is revealed by ground two.
Nor does the Tribunal’s decision need to be “fair”, if that is the applicant’s complaint. This Court does not have jurisdiction to determine whether the Tribunal’s decision was “fair ”. The Tribunal is required to provide fairness in the procedures that it employs and applies. But as to the outcome, it is as the High Court said in SZBEL at [25] that procedural fairness requires a “ fair hearing not a fair outcome” (with reference also to Attorney-General (NSW) v Quin(1990) 170 CLR 1 at 35-6 per Brennan J).
Ground Four
The applicant asserts that he satisfies the four key elements of the Convention definition. He alleges that the Tribunal “has not considered this aspect and therefore committed factual and legal error”.
This ground is often started in identical terms before this Court. At best, it is an assertion that the applicant meets the definition of “refugee” as set out in Article 1A(2) of the Refugees Convention.
The Tribunal’s decision record plainly, and clearly, shows that it did consider what is described as the “central claim” made by the applicant. That is, that he converted from being a Sunni to a Shiite, and is at risk of persecution because of this ([49] at CB 110). The Tribunal set out its reasons as to why it was unable to accept the applicant’s claim ([43] at CB 110 to [50] at 112). This ground, again, does not rise above a request for this Court to engage in impermissible merits review (Wu Shan Liang).
Ground Five
This ground appears to have two limbs. The first asserts a failure to investigate claims. The second asserts actual bias as a result.
Apart from a general reference to investigating the claims of persecution in Pakistan, the applicant does not say what specifically the Tribunal failed to enquire about.
I agree with the Minister’s submissions that, but for exceptional circumstances, the Tribunal is under no general duty to inquire (Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 121 at 21-22 per Gummow and Hayne JJ; see also SZJBA v Minister for Immigration and Citizenship [2007] FCA 1592 at 46 per Allsop J; WAGJ v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 277 at 24).
This ground really appears to be a challenge to the Tribunal’s rejection of the applicant’s factual account of what relevantly was said to have occurred in Pakistan.
On what is before the Court, there is nothing to suggest that there were any of the “strictly limited” circumstances which would compel the Tribunal to make further inquiries (Prasad v Minister for Immigration and Ethnic Affairs [1985] FCA 47 at 33; (1985) 6 FCR at 169 – 170 per Wilcox J; see also SZIAI v Minister for Immigration & Citizenship [2008] FCA 1372 at [19] per Flick J).
As to actual bias, I should note that, this allegation is very serious and must be supported by evidence. When such allegations are made by an applicant it implies that the Tribunal member by their attitude and conduct can be shown to have preset in their mind the ultimate outcome in the matter. An allegation of actual bias carries with it an onus that it must be distinctly made and clearly proved. Actual bias requires evidence of “prejudgement” by the decision-maker in the sense that he/she is “so committed to a conclusion already formed as to be incapable of alteration or of being persuaded differently, whatever evidence or argument may be presented.” (Minister for Immigration and Multicultural and Indigenous Affairs v Jia [2001] HCA 17 at [69], [71] to [72], and [127]).
The real question is whether the mind of the decision maker is open to persuasion. The applicant would need to present more that just the conclusion reached by the Tribunal to support, let alone succeed in, this claim.
I also note for the sake of completeness that allegations of an apprehension of bias must have regard to the standards of reasonableness which are determined by reference to the apprehension of “a fair-minded lay observer or a properly informed lay person” observing the Tribunal processes (Re Refugee Review Tribunal Ex parte H [2001] HCA 28 at [27] to [32]).
There is nothing before the Court to suggest bias, or the apprehension of bias, on the part of the Tribunal, let alone evidence to support such a serious charge. This complaint is not made out.
Conclusion
For the applicant to succeed before this Court, the Court would, at the very least, need to find jurisdictional error on the part of the Tribunal. I cannot discern any such error as it is said to arise from the applicant’s grounds, nor otherwise. Accordingly, the application made to the Court is dismissed.
I certify that the preceding one hundred and thirty-four (134) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Deputy Associate: C Jackson
Date: 25 September 2009
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