SZNSX v Minister for Immigration
[2009] FMCA 1055
•1 October 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNSX v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 1055 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – inconsistencies are not “information” for the purposes of s.424A of the Migration Act 1958 – no breaches of div.4 of pt.7 of Migration Act proved – allegation of bias not proved – Tribunal’s duty to make enquiries discussed. |
| Migration Act 1958, ss.424AA, 424A, 425, 474 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 SZBYR v Minister for Immigration & Citizenship (2007) 81 ALJR 1190 Minister for Immigration & Citizenship v SZIAI (2009) 259 ALR 429 Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 507 |
| Applicant: | SZNSX |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1651 of 2009 |
| Judgment of: | Cameron FM |
| Hearing date: | 1 October 2009 |
| Date of Last Submission: | 1 October 2009 |
| Delivered at: | Sydney |
| Delivered on: | 1 October 2009 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application be dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $4,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1651 of 2009
| SZNSX |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of Pakistan and alleges that he is a Shi’a Muslim. He claims that, while in Pakistan, he worked as an activist for the welfare of Shi’a Muslims and was subsequently targeted by Sunni Muslims. He claims that he was threatened and harassed and was forced into hiding as a result.
The applicant claims to fear persecution in Pakistan because of his Shi’a faith and because of his work as an activist.
After his arrival in Australia on 12 November 2008, the applicant lodged an application for a protection visa. This was refused by the Minister’s delegate on 12 March 2009. The applicant then applied to the Refugee Review Tribunal (“Tribunal”) for a review of that departmental decision. The applicant was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
In these judicial review proceedings the Court’s task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.
Background facts
The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4 – 11 of the Tribunal’s decision (Court Book (“CB”) pages 110 – 117).
The applicant made the following claims in his protection visa application:
a)he is a Shi’a Muslim;
b)he was an activist working for the welfare of Shi’a Muslims in Pakistan who, as a group, were being targeted and killed by Sunni Muslims;
c)in 1988 he became the secretary general of the local branch of the Imamia organisation and advocated for the unity of Shi’a and Sunni Muslims in that region. He resigned his post in March 2008;
d)in March 1997 Shi’a Muslims were attacked by Sunni Muslims during a Shi’a celebration. During the attack, the applicant tried to stop a Shi’a youngster from doing violence, an act which subsequently made him a target for both sides;
e)he was threatened with death and told to leave the country. His family members also received death threats. At one point, he went into hiding;
f)whilst in hiding, clashes between Shi’a and Sunni Muslims occurred in his home town. On 26 October he secretly visited the affected areas, working for the welfare of Sunni Muslims;
g)on 11 October 2008 a motorcyclist opened fire on the applicant while he was sitting in his car. The shots missed and the applicant managed to escape. He then went to Dubai where he received a phone call saying that he would be killed wherever he went;
h)as an active member of a religious party, he was arrested by the police, kept in custody and suffered harassment from “the opposite party”. His requests for state protection were totally ignored by the authorities; and
i)his uncle, who was the State Secretary of the Shi’a Management Society, was assassinated on 6 October 2008.
At the hearing before the Tribunal the applicant made the following additional claims:
a)his wife was very sick with diabetes and his worry and concern for her has affected his mental condition and his ability to recall events. His mental condition is such that he could not respond;
b)he was shot at in 1988 while travelling in his car. Apart from this incident, the only thing that happened to him in Pakistan was that he received threatening phone calls;
c)because of these threats he did not stay at home. Sometimes he went to Lahore or Karachi to save his life. He was in hiding for one and a half to two years. He never confronted anyone as he was too scared; and
d)he came to Australia to pass time, to save his life and to support his wife and children.
The applicant also read out a statement essentially reiterating the claims made in his protection visa application. In addition, he provided to the Tribunal a number of articles downloaded from the internet.
The Tribunal’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”).
The Tribunal was not satisfied that the applicant was a witness of truth and found that he had created his claims in order to obtain the visa he sought. In this connection, the Tribunal noted that:
a)the entire basis for the applicant’s claims was that he was a Shi’a Muslim and yet he could not answer basic questions about the Shi’a faith. For instance, he did not know the Shi’a declaration of faith or the names of more than one of the twelve Imans and he could not explain the difference between Shi’a and Sunni Muslim beliefs;
b)the claims made in the applicant’s protection visa application were different from the claims made at the Tribunal hearing;
c)there were inconsistencies in the applicant’s evidence and some of the claims made in his protection visa application were not repeated at the Tribunal hearing;
d)after the Tribunal alerted the applicant to the major inconsistencies in his evidence, the applicant read out a statement that essentially affirmed the evidence he had provided to the Minister’s department and which also included claims that he had not made earlier during the Tribunal hearing; and
e)the Tribunal rejected the applicant’s explanation that his wife’s condition caused him to have a mental condition of his own which affected his ability to recall events, noting that there was no medical report before it to suggest that the applicant suffered from a medical condition such that his ability to recall events was affected or which would explain his inability to provide consistent evidence. The Tribunal was of the view that the applicant’s inability to recall events was an invention made to overcome the inconsistencies in his evidence.
In light of these findings, the Tribunal did not accept that the applicant was a Shi’a Muslim, that he was an activist for the welfare of Shi’a Muslims or that he belonged to any Shi’a organisation. As such, the Tribunal did not accept that there was a real chance that he would be persecuted for reasons of his religion, real or perceived, his political opinion or his membership of any organisation, should he return to Pakistan.
Proceedings in this Court
The grounds of the application commencing these proceedings were pleaded as follows:
1.The Tribunal member had failed to honour his undertaking. The requirement to put information to an applicant is contained in s.424A which relevantly states …
It is my case that the Tribunal ignore its undertaking to give me an opportunity to make written submissions about the inconsistencies in my evidence; therefore the Tribunal had erred by denying me procedural fairness in respect of that issue. If I would provide a submission prior to RRT decision, I believe that I would have a different decision.
2.The Tribunal did not give me before the hearing the independent information that it had about Pakistan. The Tribunal used this information (RRT decision record pages 1114 to 10). This was against section 424A of the Migration Act 1958.
3.The Refugee Review Tribunal denied my procedural fairness by reaching adverse conclusions that I was not a witness of truth, being conclusions that were not obviously open on the known material, without giving me the opportunity to be heard in respect of those matters.
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 considered this aspect and therefore committed factual and legal error.
5.The RRT has failed to investigate my claims, specially the grounds of persecution in Pakistan. Therefore, the Tribunal decision dated 19 June 2009 was effected by actual bias constituting judicial error.
Breach of s.424A – inconsistencies
The applicant submits that the Tribunal should have served on him a s.424A notice highlighting inconsistencies in his accounts and giving him an opportunity to comment. Relevantly, s.424A provides:
(1) Subject to subsections (2A) and (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c) invite the applicant to comment on or respond to it.
(2) …
(2A) The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA.
(3) This section does not apply to information:
(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; …
It is to be observed that the section only requires the Tribunal to notify an applicant of “information”. “Information” as understood by s.424A does not include abstract concepts such as inconsistencies. As the High Court said in SZBYR v Minister for Immigration & Citizenship (2007) 81 ALJR 1190 at 1196 [18]:
However broadly “information” be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. The appellants were thus correct to concede that the relevant “information” was not to be found in inconsistencies or disbelief, as opposed to the text of the statutory declaration itself.
In any event, by way of an oral notification pursuant to s.424AA, the Tribunal did put the applicant on notice of its concerns regarding the inconsistencies in his evidence. That notification is reproduced at paras.44-53 of the Tribunal’s decision and, most particularly at para.45 where the Tribunal said:
I put to the applicant the following information and I explained to him that this information suggested his evidence was inconsistent and that he was not a witness of truth.
For all these reasons, the first ground pleaded in the application does not disclose jurisdictional error on the Tribunal’s part.
Breach of s.424A – country information
The independent information to which the applicant refers in the second ground of his application was information which was not specifically about him or any other individual. As a result, it falls within the exception to s.424A(1), found in s.424A(3)(a). As a consequence, s.424A(1) does not operate in respect of information of the sort referred to by the applicant in the second ground of his application.
The second ground of the application therefore discloses no basis upon which the Tribunal’s decision might be set aside.
Breach of s.425
In the third ground pleaded in his application, the applicant alleges that he was denied the opportunity to address credibility issues which were decisive for the Tribunal’s decision. The allegation is expressed in terms of procedural fairness, which is only natural justice by another name. The natural justice hearing rule has, for the purposes of the Tribunal’s reviews, been codified in the provisions of div.4 of pt.7 of the Act. Consequently, the third ground of the application should be understood to be an allegation that the Tribunal’s duty to alert him to potentially determinative issues, so that he might address them, was not discharged. That is to say, the applicant’s allegation is, in essence, that the Tribunal breached its obligations under s.425 of the Act. That section relevantly provides:
(1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
Plainly this allegation must fail. The Tribunal’s s.424AA notification, especially that part which is reproduced in para.45 of its decision record and quoted earlier in these reasons, clearly put the applicant on notice that his credibility was a major issue for the Tribunal. Moreover, the Tribunal had raised its concerns regarding the applicant’s truthfulness at an earlier point in the hearing as it discloses in para.39 of its decision record where it states:
I put to the applicant that I had great difficulty accepting that he was telling the truth.
For these reasons, no breach of the Tribunal’s s.425 obligation to identify to the applicant issues arising in relation to the decision under review is disclosed by this ground in the application.
The applicant satisfied the Convention tests but the Tribunal did not apply them
Whether or not the applicant satisfies the Convention tests for identification as a refugee is a matter which must be determined by the Tribunal. It is not a matter which can be decided by this Court whose powers in relation to the Tribunal’s decision are restricted to determining whether it is affected by jurisdictional error.
Relevantly for the fourth allegation made in the application, the question which must occupy the Court is whether the Tribunal applied the Convention tests properly, not whether it might be found on the facts that the applicant satisfied these tests. As to whether the Tribunal did or did not apply the Convention tests, it must be noted that at
pp.2-4 of its decision record the Tribunal specifically discussed the Convention tests in a fashion which discloses no error.
Ultimately, the review before the Tribunal turned not on those tests but on the credibility of the applicant. His claim failed because he was not believed in the essential element of his allegations, namely, that he is a Shi’a Muslim. Even so, the Tribunal did consider the applicant’s claims by reference to the Convention tests. This is made very clear by what the Tribunal said at paras.80 and 81 of its decision:
As I do not accept that the applicant is a Shi’a Muslim, as he claims, I do not accept that there is a real chance that he will be persecuted for reasons of his religion, as a Shi’a Muslim, if he returns to Pakistan now or in the reasonably foreseeable future. As I do not accept that the applicant was ever a member of any political or religious group in Pakistan, I do not accept that there is a real chance that he will be persecuted for reasons of his real or perceived religion or political opinion or his membership of any organisation, considered as a ‘particular social group’ for the purposes of the Convention in Pakistan.
As I do not accept his claims made to the Department or at the Tribunal hearing, I do not accept that the applicant has a well-founded fear of being persecuted for one or more of the Convention reasons or that there is a real chance that he will be persecuted for any Convention related reason if he returns to Pakistan now or in the reasonably foreseeable future.
For these reasons, the fourth ground pleaded in the application does not disclose jurisdictional error on the Tribunal’s part.
Failure to investigate claims and bias
Dealing with the first element of the fifth ground pleaded in the application, it must be recalled that the Tribunal has no duty to make inquiries. Although a failure to make an obvious inquiry about a significant fact may demonstrate a failure to conduct a review, and thus to exercise the Tribunal’s jurisdiction (Minister for Immigration & Citizenship v SZIAI (2009) 259 ALR 429), there is nothing to suggest that such circumstances existed in this case. Moreover, the applicant has not suggested or demonstrated what inquiry the Tribunal should have made and what useful result might have been produced by such an inquiry.
Turning to the allegation of actual bias, this is an allegation of great seriousness. It must not be lightly made and it cannot be easily found. As was said in Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 507, actual bias by way of prejudgment refers to a Tribunal being so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments might be presented. The only evidence before the Court is the Court Book. Nothing in that document would support a conclusion that the Tribunal approached the review of the delegate’s decision other than conscientiously and with an open mind.
For these reasons, the fifth ground pleaded in the application does not disclose jurisdictional error on the Tribunal’s part.
Conclusion
As jurisdictional error has not been demonstrated, the application will be dismissed.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 3 November 2009
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