SZRAR v Minister for Immigration
[2012] FMCA 759
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZRAR v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 759 |
| MIGRATION – Review of decision of Independent Merits Reviewer – where adverse credibility finding – whether jurisdictional error. |
| Applicant: | SZRAR |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | PENELOPE HUNTER IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER |
| File Number: | SYG 16 of 2012 |
| Judgment of: | Raphael FM |
| Hearing date: | 22 August 2012 |
| Date of Last Submission: | 22 August 2012 |
| Delivered at: | Sydney |
| Delivered on: | 22 August 2012 |
REPRESENTATION
| Applicant: | In person |
| Solicitors for the Respondents: | DLA Piper |
ORDERS
Application dismissed.
Applicant to pay the First Respondent’s costs assessed in the sum of $4,750.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 16 of 2012
| SZRAR |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| PENELOPE HUNTER IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of Afghanistan. He is an unauthorised boat arrival who came to Australia on 12 June 2010. On 6 November 2010 he made a request for a refugee status assessment. On 12 April 2011 he applied for an independent merits review of the decision of the assessor that he was not a person to whom Australia owed protection obligations. He had the benefit of assistance from a firm of lawyers and migration agents, and appeared before the Reviewer at a hearing. Following the hearing, the Reviewer sent to the agents a procedural fairness letter containing information that might lead her to conclude that the applicant was not a person who fell within the definition of a refugee under the 1951 Convention as amended by the 1967 Protocol. The Reviewer made her report to the Minister on 21 December 2011.
The grounds upon which the applicant, who is of Hazara ethnicity and Shia Muslim religion, claimed that he was a person to whom Australia owed protection obligations arose in two ways. Firstly, he had a specific claim relating to his alleged treatment by the Taliban during the years in which he lived in a suburb of Kabul. The applicant was a pastry cook who operated out of a commercial premises and what appears to be a small shop. He claimed that in August 2009, the Taliban visited his shop and asked him to help them by effectively handing over his commercial premises for them to make bombs in. He also told that the Taliban asked him to spy upon customers in the shop and provide them with information. It would appear they were particularly interested in some Pashtun customers that he had. The applicant’s second claim was a generic one arising out of his Hazara ethnicity and his Shia religion, which he claimed put him into a class of persecuted persons within Afghanistan.
The applicant was questioned about both aspects of his claims. The Reviewer put to him both inconsistencies in the various iterations of his claims during his process of assessment and independent country information that the Reviewer had as to the situation of Hazaras, particularly in Kabul. The Reviewer also took into account the applicant’s representations as to why there had been a number of inconsistencies and contradictions in his evidence over time, and why there appeared several new claims late in the progress of his case. The Reviewer found that those factors did not explain away the concerns that the Reviewer felt:
“His evidence would shift, lacked detail and precision. I did not find the claimant to be a credible witness. In addition to the inconsistencies and shifting evidence I found many [of] the key claims of the claimant to be implausible.” [87] CB247
The Reviewer did not accept the story of the Taliban asking the applicant to allow them to use his premises for bomb making, and found implausible his claim that they had asked him to spy on his Pashtun customers:
“I am therefore not satisfied that the claimant has been threatened at any time prior to his departure by the Taliban or even engaged with them prior to his departure. As a consequence of this I do not accept he was in hiding six months before he left or that the Taliban would be pursuing him. He did not mention in his initial claim that he had closed his shop and was in hiding six months before his departure. Having lived all his life in Chindawool, I consider that if the Taliban wanted to find the claimant they would not be thwarted by the fact that he did not go to work for six months. I find his evidence on his pursuit by the Taliban to be an invention.
I do accept that the claimant’s father and brother suffered and were killed at the hands of the Taliban. I accept because of these past instances of harm, the claimant has a subjective fear of the Taliban. Although it was not raised by the claimant, I have considered whether his father’s past alleged connection to the Mujahideen increases the profile and consequently the risk to the claimant. I am satisfied that it does not. The claimant advised that neither he nor any other family members had further involvement with the Taliban immediately following the death of his father.” [91-92] CB248-249.
In relation to the generic claim raised by the applicant, the Reviewer accepted that the security situation in Afghanistan remained fluid, and considered the possible insecurity arising from the withdrawal of the American and ISAF forces and the reported growth of insurgent activity:
“As previously stated I am not satisfied that the Taliban or other insurgent groups, today generally targets Hazaras or Shias systematically and discriminately from the population at large. While the situation is fluid I consider that any future instability is likely to impact on all Afghans and not Hazaras specifically distinct from the population at large.” [102] CB252
On 4 January 2012 the applicant filed an application for review of the Reviewer’s decision in this court. There was only one ground of application and that was:
“That the decision of the second respondent, the Independent Merits Reviewer, was affected by legal error.”
Upon the initiative of the court, the applicant was provided with assistance under the pro bono scheme from Mr Burwood of counsel. He gave the applicant certain advice, as a result of which there was no amendment to the application. Mr Burwood has been of considerable assistance to this court and to the applicant, and the court is grateful to him for that assistance. The applicant appeared before the court today and told it that he did not understand why the Reviewer had not accepted his words. The court has explained to the applicant that decisions on the matter of credibility are for a Reviewer par excellence and that there are very few circumstances in which a finding of that type can be challenged in judicial review. Certainly, in this case, the grounds given by the reviewer for not accepting the evidence of the applicant as satisfying her seem to be logical and based upon the inconsistencies in his own story and, in particular, the recent inventions. In regard to the Reviewer’s conclusions concerning the generic claim, these were based upon available evidence that was communicated to those advising the applicant and in respect of which a lengthy response was made. It is for the Reviewer to weigh up in her own mind the arguments raised by any conflicting independent country information and come to a conclusion upon it. This is what she has done and for that reason I am unable to find any evidence of jurisdictional error or breach of the requirements to provide the applicant with procedural fairness in the Reviewer’s decision. In those circumstances, the application must be dismissed and the applicant should pay the respondent’s costs, which I assess in the sum of $4,750.00.
I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Raphael FM
Date: 27 August 2012
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