SZRQC v Minister for Immigration

[2013] FMCA 218

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZRQC & ANOR v MINISTER FOR IMMIGRATION & ANOR [2013] FMCA 218

MIGRATION – Review of decision of RRT – whether Tribunal was required to make further investigations of certain letters – whether Tribunal was biased.

Migration Act 1958 (Cth), s.36(aa)

Abebe v The Commonwealth [1999] 197 CLR 510
Dranichnikov v Minister for Immigration & Anor (2003) 197 ALR 389
SBBA v  Minister for Immigration & Anor [2003] FCAFC 90
Minister for Immigration & Anor v SZIAI [2009] HCA 39, (2009) 259 ALR 429
SZHVL v Minister for Immigration & Anor [2008] FCA 356

First Applicant: SZRQC

Second Applicant: SZRQD

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1507 of 2012

Judgment of: Raphael FM

Hearing date: 15 March 2013

Date of Last Submission: 15 March 2013

Delivered at: Sydney

Delivered on: 15 March 2013

REPRESENTATION

For the Applicants: In person

Solicitors for the Respondent: DLA Piper Australia

ORDERS

1. Application dismissed.

2. Applicants to pay the First Respondent’s costs assessed in the sum of $6,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1507 of 2012

SZRQC

First Applicant

SZRQD

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicants are brothers who are citizens of Pakistan.  They both came to Australia on student visas and since their first arrival appear to have left and returned at various times.  The latest arrival was by the second-named applicant on 8 January 2011.  He had returned to Pakistan because of the illness of his father.  On 27 April 2011 the applicants submitted individual claims to be refugees and requested the grant of protection (Class XA) visas.  On 26 July 2011 a delegate of the Minister refused to grant them protection visas and on 25 August 2011 they applied for review of the delegate’s decision.  Their cases were processed together and they both attended a hearing before the Tribunal.  In that hearing they were both questioned as to their claims by the Tribunal member.  On 7 June 2012 the Tribunal determined to affirm the decision under review. 

2. The grounds upon which the applicants both claimed to be persons to whom Australia owed protection obligations were based upon their relationship with their father who had been a senior army officer in Pakistan.  When their father retired from the army he took up a post in an organisation known as the Strategic Plans Division where he rose to the position of deputy director.  The Strategic Plans Division had responsibility for protecting Pakistan’s nuclear capability and for other matters involved in Pakistan’s security.  It was said that the applicants’ father had responsibilities which involved investigations of the Taliban including the possibility of bringing them to court.  It was said that because of the father’s high level security position the family lived in a military cantonment in Rawalpindi which is a protected area.  But the protection is limited to the cantonment and it is difficult for persons to be confident of security outside it.  These two young men were sent to Australia for a higher education because it was felt, they said, they could not receive higher education in safety in Islamabad or, indeed, elsewhere in Pakistan.

3. The student visas of both brothers were cancelled, it would appear as a result of their failure to pay the requisite fees after the family rural holdings had been devastated by flood.  Notwithstanding this, they remained in Australia. 

4. The second-named applicant in his statutory declaration claiming the protection visa, stated that he had arrived in Australia in February 2010 and completed two semesters of his course in certificate IV in Information Technology.  When he heard that his father had suffered a heart attack he suspended his studies and returned to Pakistan.  Whilst there, on 29 November 2010, whilst in Rawalpindi and returning home, he was intercepted by four armed men travelling on two motorcycles who held him at gunpoint and demanded to know his name, his father’s name and details of their association with the Pakistan Army.  These people made death threats to the second applicant but left after public attention began to be drawn to their actions.  A report was made to the police.

5. On 5 January 2011 the second applicant was once again held at gunpoint by four marked men whilst out shopping.  Threats were made to his family.  He called for help and the men fled again.  Again the matter was referred to the police.  The second applicant received some security assistance for some time but it was made clear to his father that this could not be continued indefinitely.  Both applicants claimed that should they be required to return to Pakistan their lives will be in danger from Taliban associated groups because of their association with their father.

6. The Tribunal questioned both brothers about their claims and about certain evidence that they had submitted in support.  This included, importantly for these proceedings, some letters, one of which is found at [CB 190] being a letter from the father to a person known as MK, DSP of the Western Region, Rawalpindi.  The second is the response from Mr K of the Punjab Police to the applicants’ father.  These letters were only produced shortly before the hearing.  Other documentation produced was mostly concerned with the father’s position in the security organisation for which he worked.

7. The Tribunal put to the applicants its concerns about their evidence including concerns about the letters.  The Tribunal pointed out to them that:

   “[67]His father’s letter to the Punjab Police and the response were both written in good English, and contained no Urdu.  He said he and his brother were highly educated and spoke English and Urdu equally well.  His father was similarly highly educated, as might also be the Deputy Superintendent.  I noted that the letterhead of the police response contained only English.  He said English is very common in Pakistan, including for official communications. 

   “[68]I put to the first-named applicant that the information available to the Tribunal indicates that false documents, including documents from official sources, are easily obtainable in Pakistan and that this could reduce the weight which could be placed on the documents he had submitted to the Tribunal.  He said false documents do not leave trails - the documents he had submitted were specific as to names, places and dates, and they could be checked.”   [CB 260]

8. In the Tribunal’s findings and reasons which commenced at [102] [CB 267] the Tribunal noted:

   “[102]The Applicants claim to fear harm in Pakistan at the hands of the Taliban and other Islamic militant groups, as a result of the leading role their father is said to play in counter-terrorist investigations and operations.  They also claim to fear harm from the family of members of such groups who have been brought to justice as a result of their father’s work.  The Applicants confirmed at hearing that they were claiming this harm had arised from the convention grounds of their real or imputed political opinion against the Taliban as well as their membership of a particular social group consisting of family members of persons running anti-Taliban operations.  Before the Tribunal they made no reference to the further Convention ground of religion, on the basis that the Taliban regarded their family as infidels which was suggested by the second-named Applicant at the Departmental interview.”

9. The Tribunal opined that it had concerns about the credibility of the applicant’s claims as to the role played by their father in operations against the Taliban and other militant Islamic groups in Pakistan.  It had doubts as to whether the father played any kind of leadership role in general operations against the Taliban or other Islamic militant groups in Pakistan.  The Tribunal was not satisfied that in his new position he had any particular background or expertise in counter intelligence work, investigation or interrogation.

10. The Tribunal was concerned that a letter written by the applicants’ father had been written under the insignia of the general headquarters of the Pakistan army, an organisation in which the applicants’ father was no longer employed.  Although the Tribunal was prepared to accept that the father had a residual right to use that letterhead it could not understand why he had done so in place of the letterhead of the organisation for which he worked.

11. The Tribunal expressed its concerns about all documentation based upon the independent country information concerning the availability of false or fraudulent documents in Pakistan which had been discussed with the applicants at hearing.  At [111] [CB 270] the Tribunal said:

    “[111]As I am not satisfied that the Applicant’s father has attracted the adverse attention of the Taliban or other militant Islamic groups because of his work in the SPD, it follows that I do not accept that members of his family have been singled out or targeted for this reason.  I am not satisfied that either Applicant, that either applicant is perceived by the Taliban or other groups as a person who holds an opposing political opinion or that either has been targeted in the context of a feud or revenge attack by the relatives of members of such groups who have been brought to justice by the authorities.  Nor am I satisfied that either Applicant has been targeted because of his membership of the family of an army officer involved in operations against the Taliban or other Islamic militant groups.”

12. The Tribunal considered the claims made by the second applicant of the threats that had been made against him and found that it was not satisfied that these had occurred for reasons which it gave at [CB113-114].  At [CB 114] the Tribunal considered the letters to which reference has previously been made in these reasons.  The Tribunal noted that it had put to the applicants the delay in writing the letters following the events and suggested that if the father had considered there was a grave threat to himself and his wife he would have done so earlier.  The Tribunal indicated that the delay suggested that the letters have been written simply to provide evidence for the Tribunal.

13. The Tribunal did not find the explanations put by the applicants convincing and found that in turn this casted doubt on the reliability of the letter which is said to have been written by a deputy superintendent of police. The Tribunal concluded that it could not be satisfied that the applicants faced a real chance of serious harm on any of the convention grounds submitted should they return to Pakistan in the reasonably foreseeable future. The Tribunal also considered the applicant’s claims under complementary protection legislation in s.36(2aa) of the Migration Act 1958 and came to a similar conclusion.

14. On 11 July 2012 the applicants filed an application in this court seeking review of the Tribunal’s decision.  The grounds of the application were said to be:

    “1. Unreasonableness

    2    Biased”

    but the facts which were said to support these grounds were similar.  They arose from the concern the applicants held about the Tribunal’s views upon the police report which they felt that the RRT had dismissed outright without further investigation as to whether or not the report was authentic.  They claimed this had been done because of a preconceived bias on the part of the Tribunal and noted from the transcript that the Tribunal had indicated that it had only just received those letters and only had “a quick look at it.”  [T3]

15. In the attachment to the application the applicants state that:

    “The RRT dismissed the two most important pieces of evidence on which our whole case is pivotal without making any effort into inquiring the authenticity of the letter or the reports despite our best efforts to keep then (sic) updated on the contact details of both the organisations.  The decision made by the RRT does not mention any such effort on behalf of the tribunal and seem to dismiss the most important aspects of the case, ie, the evidence provided on the grounds that in Pakistan such documents are obtained easily.”

16. As the applicants showed me today there was considerable discussion between the Tribunal and them concerning these two documents which commences at [T36] and goes on to [T39].  The concern the Tribunal raised is about the quality of the English of the letters particularly that from the deputy superintendent and the fact that they were not written in Urdu nor was there any Urdu visible on the letters.  The applicants were given every opportunity to provide an explanation which they did but their complaint here seems to be that the Tribunal made no other independent investigations but that is not the responsibility of the Tribunal. 

17. It is for an applicant to satisfy the Tribunal of his claim not for the Tribunal to go out itself and find evidence; Abebe v The Commonwealth [1999] 197 CLR 510; Dranichnikov v Minister for Immigration & Anor (2003) 197 ALR 389; SBBA v  Minister for Immigration & Anor [2003] FCAFC 90 at [7-8]. The Tribunal’s duty to inquire was considered by the High Court in Minister for Immigration & Anor v SZIAI [2009] HCA 39, (2009) 259 ALR 429[1] where it was held at [25]:

    “[25]The duty imposed upon the Tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. It is not necessary to explore these questions of principle in this case. There are two reasons for that.”

    [1] “SZIAI”

18. But the general view of the authorities was not much altered by the decision in SZIAI that there is no general requirement or obligation upon a Tribunal to make inquiries, “solely for the purpose of confirming evidence upon which it has expressed doubt to a party.”

19. Notwithstanding that another Tribunal may not have considered the English of “DSP K” to be quite as perfect as this Tribunal, these are matters for the Tribunal alone and not matters with which this court can interfere. 

20. But perhaps the most substantive fact telling against the applicants’ claims is that the Tribunal’s view about these letters as expressed at [114] [CB 271] does not refer to the language in which they are written, but to the delay in the father’s original complaint, so that it would be difficult to say that any view the Tribunal may have held about those letters informed its decision.  The grounds for that decision are well laid out and include the delay in the applicants applying for protection visas as well as the Tribunal’s doubts about the applicants’ credibility .

21. In my view the applicants have not been able to make out the very strict requirements for a finding of bias.  In SZHVL v Minister for Immigration & Anor [2008] FCA 356 McKerracher J says at [17]

    “[17]As to the allegations of bias in the written submissions, I would not permit this matter to be raised on the appeal. It was not argued in the application for review by the Federal Magistrates Court nor was it included as a ground of appeal in the appeal to this Court. It is clear that an allegation of bias must be distinctly made and proven: Minister for Immigration and Multicultural Affairs v Jia Legeng[2001] HCA 17; (2001) 205 CLR 507 at [69] per Gleeson CJ and Gummow J. It would be a rare and extreme circumstance that bias on the part of the Tribunal would be established simply by reference to the reasons produced by the Tribunal: SCAA v Minister for Immigration and Multicultural and Indigenous Affairs[2002] FCA 668 at [38] per von Doussa J. See also SBBF v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 358 at [16] per Tamberlin, Mansfield and Jacobson JJ.”

22. In these circumstances I am unable to assist the applicants by providing them with review of this decision.  The application is dismissed.  The applicants shall pay the first respondent’s costs which I assess in the sum of $6,000.00.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Raphael FM.

Date:  28 March 2013