SZPZJ v Minister for Immigration

[2011] FMCA 338

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZPZJ v MINISTER FOR IMMIGRATION & ANOR [2011] FMCA 338

MIGRATION – Review of decision of the Refugee Review Tribunal – request for impermissible merits review – weight to be accorded to evidence is a matter for the Tribunal – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.36, 65, 91R, 476
Federal Magistrates Court Rules 2001 (Cth), Sch.1

Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; (2010) 273 ALR 122; (2010) 85 ALJR 306
SZJGV v Minister for Immigration and Citizenship [2008] FCAFC 105
Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 136 ALR 481; (1996) 70 ALJR 568
Durairajasingham [2000] HCA 1; (2000) 168 ALR 407; (2000) 74 ALJR 405
Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1

Applicant: SZPZJ

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 367 of 2011

Judgment of: Nicholls FM

Hearing date: 19 April 2011

Date of Last Submission: 19 April 2011

Delivered at: Sydney

Delivered on: 19 April 2011

REPRESENTATION

The Applicant: In Person

Appearing for the Respondents: Mr A Markus

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application made on 3 March 2011 is dismissed.

2. The applicant pay the first respondent’s costs set in the amount of   $4,600.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 367 of 2011

SZPZJ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore; Revised from Transcript)

1. I have before me today an application made on 3 March 2011 under s.476 of the Migration Act1958 (Cth) (“the Act”) which seeks review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 2 February 2011, to affirm the decision made by a delegate of the respondent Minister to refuse a protection visa to the applicant.

Background

1. From the material before the Court (the bundle of relevant

   
   

   documents – “Court Book” – “CB”), it appears that the applicant is an Afghan national who arrived in Australia on 16 February 2011. Although, I do note, at one point, the applicant did provide a document to the immigration authorities where he noted his citizenship as being Iranian (CB 42).

2. The applicant applied for a protection visa in March 2011 (CB 12 to CB 65 with annexures). The applicant was assisted by a registered migration agent (CB 34).

Claim to Protection

1. It is the case that the applicant’s claims to fear persecutory harm in Afghanistan changed significantly over the course of the statement of his initial claims on his arrival in Australia, what he put before the Minister’s delegate, and then throughout the course of the conduct of the review before the Tribunal.

2. Initially, the applicant claimed to fear persecutory harm in Afghanistan because he said, during the course of English classes, and in particular in January 2010, he spoke against the Taliban and made critical comment about the prophet Muhammad. He claimed to have been reported to the civil and religious authorities, and that as a result, his brother was beaten when the authorities came looking for him, and that he was also wanted by the police. The applicant claimed on this initial version that he fled to Pakistan and ultimately came to Australia. In this account, some reference was made to his Hazara ethnicity as a source, or also the cause, of the fear of persecutory harm (CB 12 to CB 13).

The Delegate

1. On 30 March 2010 the applicant attended an interview with the Minister’s delegate. Initially, when he was asked to confirm his version of his account he did. However I note, in particular, that he denied having lived in any country other than Afghanistan, apart from short stays in Pakistan and the United Arab Emirates on his way to Australia.

2. At a second interview with the delegate in August 2010, the applicant submitted a document which was said to be an Afghan identity card that he claimed that he had just received from his brother the day before.

3. At this interview the applicant was then confronted with the result of inquiries made by officers of the Department of Immigration and Citizenship. These inquiries resulted in, and included fingerprint matching, which revealed that at the time that the applicant had claimed to be in Afghanistan, and indeed attending English classes, where he made certain statements that then incurred the wrath of the authorities, that he had in fact been in the United Kingdom and had sought refuge in that country in June 2002. Further, that on that occasion, he had used a different name (CB 117). It appears this application was refused in the United Kingdom in July 2003.

4. It was at this point, when confronted with this evidence, that the applicant then admitted that he had travelled to the United Kingdom in 2002, and had sought asylum. When this was refused, he travelled to Ireland where it appears he studied and worked. He also unsuccessfully sought asylum in Ireland (CB 118). It was at this point that the applicant admitted that he had made up the earlier claims.

5. He then advanced the claim before the delegate to fear persecutory harm in Afghanistan on the basis that he feared the Taliban because his father had fought against them and had been killed by them in 1998. Given that the matter of religion subsequently became important in this matter, I note that at this time, the applicant otherwise asserted that he no longer believed in Islam and that there was nowhere in Afghanistan where he could safely live.

6. The delegate refused the application in November 2010. The delegate found that the applicant’s initial statement of his claims to fear harm in Afghanistan had been fabricated (CB 124). In relation to the later claims, the delegate found that the applicant’s willingness to present claims that were “manifestly untrue” raised significant doubts as to the truth of the later claims. Further, the delegate found that the applicant had provided “unconvincing and unsupported information” (CB 125).

7. In relation to these later claims, the delegate found that in any event the applicant could reasonably and safely relocate within Afghanistan (CB 126), and in all therefore, was not satisfied that the applicant was a person to whom Australia owed protection (CB 127).

The Tribunal

1. The applicant applied for a review to the Tribunal on 12 November 2010 (CB 129). He continued to be represented by a registered migration agent (CB 130). He was invited to, and indeed did, attend a hearing before the Tribunal on 19 January 2011 (CB 150). I also note that, through his migration agent, the applicant provided written submissions to the Tribunal (CB 152 to CB 163).

2. In terms of the development of the applicant’s claims, I note that following the lodgement of his application for review, the applicant raised a further claim to protection. That is, that he had had converted to Christianity, and that he feared harm as a result of this, if he were to return to Afghanistan ([67] at CB 176 and [88] at CB 179).

3. The Tribunal did not find the applicant to be a truthful or reliable witness ([112] at CB 184 and [122] at CB 185). It found, and, it must be said unsurprisingly, that his initial claims were a fabrication. As to his subsequent claims, the Tribunal found that his willingness to fabricate evidence, and the significant delay in informing the Minister’s department of his subsequent claimed true circumstances were of concern.

4. The Tribunal noted that he only admitted the falsity of the earlier claims after adverse information was put to him. It is important to note here that the applicant provided explanations to the Tribunal as to why he acted in this way. But the Tribunal found his explanations to be unsatisfactory ([116] at CB 184).

5. In particular I note that, in relation to the claimed conversion to Christianity, the Tribunal found that certain letters provided by two religious persons in support of the applicant’s claims did not cure its concerns in relation to the truthfulness and sincerity of the applicant’s actions. Ultimately, the Tribunal found that he was not a Christian and that his claim of conversion was not genuine, and nor was it sincere ([117] at CB 184 to [120] at CB 185).

6. In relation to certain religious conduct, the attendance at religious activities and ceremonies at the Villawood Detention Centre where the applicant was held, the Tribunal found that it disregarded such conduct in assessing whether the applicant had a well-founded fear of persecution. Though the Tribunal did not identify s.91R(3) of the Act specifically in the language that it used, it is certainly clear that the Tribunal proceeded pursuant to that part of the Act ([120] at CB 185).

7. In relation to the claim to fear harm because of his Hazara ethnicity, and the Tribunal fairly accepted that as a result, the applicant may be perceived to be a Shia Muslim. The Tribunal found that, despite its concerns about his credibility, it accepted that his father had been killed by the Taliban for reason of political opinion ([122] at CB 185).

8. But that, essentially for two separate reasons, the applicant could return to Afghanistan in this regard without a real chance of a well-founded fear of persecution. First, the Tribunal found that the applicant would not face persecution in what could be described as his home area. The Tribunal relied on country information and gave reasons for this finding. In any event, the Tribunal found separately, again relying on information that was available to it, that the applicant could safely and reasonably go back to Afghanistan and relocate to Kabul ([129] to [130] at CB 189).

9. Further, in relation to his claims to fear harm because he had sought asylum in three Western countries, the Tribunal could find no information to indicate that the Afghani authorities would imprison such failed asylum seekers who returned to Afghanistan, and in particular to Kabul ([128] at CB 189).

10. As to the claim that as an Hazara returning from the west, or who would be forced to work for foreigners in Afghanistan, the Tribunal could also find no evidence that such persons faced serious harm in Kabul as a result of their race, imputed political opinion or indeed, as the Tribunal said, for any other Convention reason ([128] at CB 189).

11. The Tribunal therefore affirmed the delegate’s decision ([132] at CB 189).

Before the Court

1. Before the Court today the applicant appeared in person. He was assisted by an interpreter in the Dari language. Mr A Markus appeared for the respondent Minister.

2. The applicant has put two grounds before the Court by way of his application:

   “1. The RRT made a legal error when it failed to give sufficient weight to my evidence that I am genuine Christian and that I would therefore be persecuted in Iran for apostasy for rejecting Islam and converting to Christianity.

   2. The IMR also made a legal error when it decided I would not face persecution in Afghanistan in spite of the fact that I am from an Hazara ethic background and was a Shia Moslem”.

3. It is immediately obvious that there were difficulties with both of those grounds. Before the Court the applicant explained that, in relation to ground one, the use of the word “Iran” is a mistake, and that the word Afghanistan should be substituted. In relation to ground two, the reference to IMR is a reference to the Tribunal.

4. The applicant explained that these mistakes were due initially, he said, to a “lawyer” who assisted him in drafting these grounds. He identified this person as Francis Milne, who I can take judicial note has regularly assisted persons who appear before this Court. It is unclear whether Ms Milne is a lawyer or indeed a registered migration agent.

Consideration

1. Dealing first with the applicant’s grounds as put in the application, and explained before the Court, ground one asserts fear of persecutory harm because of the applicant’s Christian beliefs if he were to return to Afghanistan. I should just note, that if the ground had been left unchanged, that is, if the ground had been left as initially pleaded, of course it must fail because there was no issue before the Tribunal that the applicant had any fear, or indeed any opportunity, or capacity, to return to Iran. Iran was not the country of claimed persecution.

2. But even substituting the word “Afghanistan”, the applicant’s ground cannot succeed. What is perfectly clear from the Tribunal’s decision record is that the Tribunal rejected the applicant’s claims that he was a genuine Christian convert. As Mr Markus, in my view correctly, submitted, such a claim is misconceived when regard is had to any plain reading of the Tribunal’s relevant analysis.

3. It is the case that the evaluation of the evidence put before the Tribunal and the weight to be accorded to that evidence is a matter for the Tribunal, and not one in which this Court can intervene, even if it wanted to, to assign a different evaluation or a different weight leading to a different factual conclusion (Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; (2010) 273 ALR 122; (2010) 85 ALJR 306 (“SZJSS”)).

4. As I sought to explain to the applicant, on what was before it, and particularly in the way that the applicant’s various claims evolved during the history of his attempts to seek protection in this country, the Tribunal’s finding was reasonably open to it to make, and for which it gave cogent reasons.

5. The applicant’s own conduct, for example his admission only after being confronted with evidence that he was not in Afghanistan as he had claimed, his earlier statement that he had “no religion”, yet his claims later to have religious conviction, all provide the probative basis for the Tribunal to find that he had a willingness to fabricate claims and evidence. This underpins the Tribunal’s ultimate conclusion in relation to the applicant’s claimed Christian conversion.

6. I should also note in this regard Mr Markus’ submissions in relation to the two letters from religious persons provided by the applicant to the Tribunal in support of his claims. The Tribunal found that those documents, in important respects, were inconsistent with the applicant’s own claims. When the Tribunal also took into account the applicant’s explanation, this clearly raised questions about the significance and the role of those two letters, further undermining the applicant’s credibility ([119] at CB 185).

7. I should just note that in one of those letters, provided by a person who appears to be a minister of religion, the Reverend James Warren, that Reverend Warren said that he is quite assured that the applicant has been a Christian, even back in Afghanistan. The difficulty of course being that the applicant never claimed to have been a Christian in Afghanistan.

8. I should also note, as I did during the course of the hearing, that the Tribunal’s disregard of the applicant’s relevant conduct, that is, attendance at religious ceremonies and the like in the Villawood Immigration Detention Centre, which presumably came about as a result of the Tribunal’s application of s.91R(3) of the Act, did not preclude the Tribunal from taking into account this conduct as part of its assessment of the applicant’s credibility (see SZJGV v Minister for Immigration and Citizenship [2008] FCAFC 105, particularly the joint judgment of Crennan and Kiefel JJ).

9. No error is revealed in relation to ground one.

10. As pleaded, again, ground two cannot succeed. The applicant claims to be aggrieved by a finding by “IMR”, which I assume to mean the Independent Merits Review process, which applies to those who have arrived in Australia by boat and claim asylum. The ground clearly cannot succeed. The applicant did not arrive by boat.

11. But even if this was some mistaken reference to the Tribunal, the ground does not succeed. The Tribunal specifically considered the applicant’s claim to fear persecutory harm in Afghanistan because of his Hazara ethnicity, and the perception of his Shia religion.

12. At one part of the hearing the applicant appeared to take issue with the Tribunal’s reference to “Shia Muslim” on the basis that in fact he asserted that he was a genuine Christian. It is a little strange therefore, that the ground, which presumably was put before the Court, albeit with assistance, but with the applicant’s knowledge, asserts a failure by the Tribunal when it decided that he would not face persecution in Afghanistan in spite of the fact that he was a Shia Muslim.

13. In any event, what remains is that the Tribunal did address this aspect of the applicant’s claim, even though this claim appeared to be in some contradiction to other aspects of the claims that he had made at different times during the course of his attempts to persuade the Australian authorities that he should be given protection in this country.

14. In short, the Tribunal accepted that the applicant was of Hazara ethnicity and that, because of that, there may be some perception in Afghanistan that the applicant may be of the Shia followers of Islam. It properly understood that that aspect of the applicant’s claim was that, whether he was Shia or not, he may be perceived as such. The Tribunal therefore quite properly dealt with, or addressed its mind to, that aspect of the applicant’s claims.

15. In any event, as I said earlier, the Tribunal dealt with these claims in two separate ways. That it would be safe for the applicant to return to his home province or, in the alternative, the applicant could reasonably and safely relocate to Kabul. However, while the Tribunal ultimately reached conclusions or views which were adverse to the applicant, these were open to the Tribunal on what was before it. To the extent that the Tribunal relied on independent country information that was before it in coming to these conclusions, the use and the weight to be accorded to such information is of course a matter for the Tribunal to determine in its role as the relevant fact finder (SZJSS).

16. It is the case, on what is before the Court, that I cannot see that this particular complaint is anything more than a request for this Court to intervene and to substitute its own findings for those of the Tribunal. In other words, for this Court to engage in impermissible merits review (Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 136 ALR 481; (1996) 70 ALJR 568).

17. Before the Court the applicant asked, I assumed rhetorically, how it was that the Tribunal determined that he was not a genuine Christian. He put to the Court that he could not understand how the Tribunal could know his true feeling. That goes to the very heart of how the Tribunal is statutorily required to conduct itself, and to operate within the task that has been given to it by the Act.

18. The relevant statutory scheme requires the Tribunal to reach a requisite level of satisfaction on the evidence that is put before it as to whether the applicant is a person to whom Australia owes protection obligations (see s.65 and s.36(2) of the Act). In effect, and in reality, this means whether the applicant meets the definition of “refugee” as set out in Article 1A(2) of the UN Refugees Convention.

19. The answer to the applicant’s rhetorical questions, as I sought to explain to him at the hearing earlier today, is that the Tribunal simply could not believe the applicant, given what had been put before it, to have been genuine in his claims to have converted to Christianity.

20. But a far better and more complete answer was that put forward in submissions by Mr Markus today. This is what the Tribunal itself said quite clearly in its decision record (at [116]):

    “The shifts and changes in the applicant’s evidence throughout the process; his willingness to fabricate evidence; and the significant delay in informing the Department of his claimed true circumstances and only after adverse information in this regard was put to him. The Tribunal has considered the applicant’s claim and his representative’s submission that he was merely relaying to the Department what the smuggler had told him to say in order to maximise his chances. However, this does not satisfactorily explain the Tribunal’s concerns relating to the credibility of his evidence.”

1. How did the Tribunal determine that the applicant was not a genuine Christian? The answer to the applicant is that his own evidence was not accepted because, as the Tribunal said, of his willingness to change this evidence when it suited.

2. It is the case that a finding on credibility is a finding of fact within the proper exercise of the Tribunal’s jurisdiction (Durairajasingham [2000] HCA 1; (2000) 168 ALR 407; (2000) 74 ALJR 405). The applicant asked the Court for a “fair decision” but it is the case, as I explained to the applicant, that the Court cannot intervene to substitute its own factual findings, including findings on credibility, for those made by the Tribunal.

3. Further, it is not whether the Tribunal made a fair decision, if that is what the applicant really meant today in terms of the outcome, but, as has repeatedly been said by the High Court, whether the process adopted by the Tribunal has been fair (see Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1 at 35-36 per Brennan J).

4. In this regard, the applicant was invited to and attended a hearing, and was put squarely on notice of the Tribunal’s concerns about his credibility. In this way, the Tribunal did act fairly.

5. I should just note that, at one point during the hearing today, the applicant also interjected with the statement that in his home province of Behsud the population is always under attack from the Taliban. I understood this to be some complaint about the Tribunal’s finding to which I have earlier referred, that is that he could safely return to his home area.

6. Given what is set out at [124] and [125] (CB 188) of the Tribunal’s decision record, the applicant’s interjection really is another attempt by him to complain about a factual finding made by the Tribunal which was reasonably open to it to make on what was before it.

Conclusion

1. For the applicant to succeed before the Court today, the Court would need to discern jurisdictional error on the part of the Tribunal. No such error is evident either as a result of the applicant’s grounds in the application, nor indeed, it must be said, otherwise. In these circumstances, I will make an order dismissing the application that has been put before the Court.

Costs

1. There are two things I need to consider. The first is whether the order should be made. The second is, if I am minded to make the order, whether the amount sought is, in all the circumstances, a reasonable amount.

2. On the first issue, given that the applicant had nothing to say, and given that I cannot otherwise see any reason that the order should not be made in the usual course, I will make such an order.

3. As to the amount, I note that in the relevant Schedule to the Rules of this Court (Sch.1 Federal Magistrates Court Rules 2001 (Cth)) the Minister could have sought an amount greatly in excess of $4,600. But as I have often said, what is set out in that Schedule is, in my view, merely a general guideline. What is persuasive that this amount is, in the circumstances, a reasonable amount is when I have regard to the work that has actually been done by the Minister’s solicitors in responding to the application. Therefore, I will make the order in that amount.

I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Date:  6 June 2011