SZRRD v MINISTER FOR IMMIGRATION & ANOR
[2014] FCCA 2796
•17 December 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZRRD v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 2796 |
| Catchwords: MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – whether the Tribunal overlooked an element or integer of the applicant’s claims or misinterpreted the applicable law considered – no jurisdictional error. |
| Applicant WAEE v Minister for Immigration (2004) 75 ALD 630 Minister for Immigration v Yusuf (2001) 206 CLR 323 |
| Applicant: | SZRRD |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3085 of 2013 |
| Judgment of: | Judge Driver |
| Hearing date: | 20 November 2014 |
| Delivered at: | Sydney |
| Delivered on: | 17 December 2014 |
REPRESENTATION
| Solicitors for the Applicant: | Mr N Dobbie of Dobbie and Devine Immigration Lawyers Pty Ltd |
| Counsel for the Respondents: | Mr P Knowles |
| Solicitors for the Respondents: | DLA Piper |
ORDERS
The application as amended on 31 July 2014 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3085 of 2013
| SZRRD |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
This is an application to review a decision of the Refugee Review Tribunal (Tribunal). The decision was made on 14 November 2013. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.
The following statement of background facts relating to the applicant’s protection claims and the decision of the Tribunal on them is derived from the submissions of the parties.
The applicant is a male citizen of Pakistan. The applicant first arrived in Australia on 12 February 2011 as the holder of a Maritime Crew (Subclass 988) visa[1].
[1] Court Book (CB) 334
On 23 March 2011, the applicant applied for a protection (Class XA) visa. The applicant was assisted in making that application by his registered migration agent[2].
[2] CB 1-27
The applicant's representative provided a written submission, dated 16 March 2011[3]. It was submitted, among other things, that the applicant had openly opposed the Taliban and that there had been multiple attacks on his family unit. It was further submitted that the family could not relocate as the family were Pashtuns, who could be easily identified and would consequently be targeted.
[3] CB 57-61
The applicant's claims for protection were further set out in a statutory declaration dated 23 March 2011[4]. In that declaration, the applicant claimed that:
a)he was ethnic Pashtun and his family was from the Swat District;
b)he worked on ships as a crew member from January 1998 to February 2011. In May 2009, while talking on the telephone to his brother, he was informed that there was a conflict between the Pakistani military and the Taliban in Swat and, that on 11 May 2009, the family home was shot at by the Taliban resulting in the applicant's mother being killed;
c)on the applicant's return to Swat at the end of September 2009, the applicant began to speak out against the Taliban. However, the applicant was threatened by the Taliban in October 2009 and, consequently, the applicant remained in hiding at his residence until he returned to working on ships in January 2010;
d)in January 2011, the applicant's nephew was kidnapped by the Taliban. The applicant claimed that the kidnapping occurred because the Taliban were targeting the applicant for speaking out in 2009. The applicant further claimed that on 16 March 2011, his father had been taken by the Taliban;
[4] CB 42-45
On 24 May 2011, the applicant attended an interview with the Minister’s Delegate. At the interview, the applicant clarified that when he spoke out against the Taliban in 2009, he only did so to his friends and associates[5]. The applicant further clarified that he did not pay the ransom demanded for his nephew and that the only contact he had with the Taliban was in October 2009[6].
[5] CB 116
[6] CB 117
On 27 June 2011, the Delegate refused the application[7]. The applicant sought review of this decision to the first (differently constituted) Tribunal. The Tribunal affirmed the delegate's decision on 16 November 2011[8]. The applicant sought judicial review of that decision to this Court. On 13 November 2012, the Court remitted the matter back to the Tribunal for reconsideration according to law.
[7] CB 108-120
[8] CB 174-189
On 9 July 2013, the applicant appeared at a hearing before the Tribunal as presently consituted.
At the hearing the applicant further claimed that he had ties to the National Party - Awami League (ANP)[9].
[9] CB 336 at [23]
The decision of the Tribunal
The Tribunal found that the applicant was not a credible witness[10].
[10] CB 338 at [38]
The Tribunal did not accept the claim that the applicant's father was kidnapped on 16 March 2011 by the Taliban, which was included in the original statutory declaration, but was not otherwise raised by the applicant until being prompted by the Tribunal[11].
[11] CB 339 at [39]
The Tribunal did not accept that the applicant was a member of the ANP or any other party as the Tribunal noted that the claim was not mentioned in the applicant's visa application, or before the delegate. The Tribunal consequently found that the applicant was prepared to fabricate his claims in order to enhance his claims for protection[12].
[12] CB 339 at [41]
The Tribunal further found that the applicant's assertion that his nephew's kidnapping was as a result of the Taliban trying to target him was also manufactured so as to enhance his claims for protection[13].
[13] CB 339 at [42]
The Tribunal did accept that the applicant's mother was killed in crossfire between the Taliban and the Pakistan military[14]. However, it ultimately found that the applicant had not been targeted by the Taliban in 2009 and that he had not spoken out against the Taliban[15].
[14] CB 340 at [46]
[15] CB 340 at [44]-[45]
The Tribunal further found that if the applicant were to return to Swat he would not suffer harm for reason of him being a Pashtun and a Sunni Muslim[16].
[16] CB 340 at [48]
The Tribunal ultimately found that there was not a real chance that the applicant would suffer serious harm in the reasonably foreseeable future if he were to return to Pakistan[17]. The Tribunal also found that the applicant was not a person to whom complementary protection was owed[18].
[17] CB 340 at [50]
[18] CB 341 at [54]-[55]
The judicial review application
These proceedings began with a show cause application filed on 12 December 2013. The applicant now relies upon an amended application filed in court by leave on 31 July 2014. The grounds and particulars in the amended application are:
1.The Tribunal failed to consider a claim made by the Applicant
Particulars:
(i)As stated by the Tribunal (CB335 at [18]), the Applicant claimed that he faces harm in Pakistan:
..as he is Pashtun and they have been targeted by Urdu speaking Indian Muhajirs who are members of MQM. It is claimed the applicant’s family are associated with the ANP and this places them at risk of harm.
(a) The Tribunal did not consider that claim.
(ii)The Applicant claimed that he returned to Pakistan on or around October 2009. He claimed that he had spoken up against the Taliban to friends and family. As a consequence, he claimed he was threatened by the Taliban and told to stop saying things against the Taliban, after which he was ‘a prisoner in his own home’.
(a) The Tribunal found the following (CB339 at [43]):
43. Additionally, if the Taliban sought to harm the applicant as he claims, they had the opportunity to do so while he was in his home village from October to December 2009. I do not accept as reasonable his claim that he was able to avoid harm as he stayed inside. I find that he was not targeted by them and left his village as he normally would after a few months at home and to take up yet another contract on a ship.
(b) But that was not the claim put by the applicant. He did not assert that the Taliban sought to harm him after he stayed inside, as a result of the threat. The harm was that he had to stop expressing his political views, being that he had to stop speaking against the Taliban, which is what he did.
(c) The Tribunal had to consider whether the threat was made, and or whether the Applicant would refrain from expressing his political views in relation to the Taliban, out of a fear of harm, should he return to Pakistan. That can also be considered as a misinterpretation of the applicable law.
2. The Tribunal misinterpreted the applicable law or misapplied the law to the facts
Particulars:
(i) See Particular (1)(ii) above.
I have before me as evidence the court book filed on 3 March 2014.
Both the applicant and the Minister made written and oral submissions.
Consideration
The amended application raises two issues:
a)Did the Tribunal fail to consider the applicant’s claim that he was a Pashtun and that he would be targeted by Urdu speaking Indian Muhajirs who are members of a rival group, the MQM?
b)Did the Tribunal fail to consider (or otherwise err in considering) the applicant’s claim that he was a “prisoner in his own home” because he was threatened by the Taliban?
Issue 1 (the Muhajirs claim) – applicant’s submissions
As stated by the Tribunal[19], the applicant claimed that he faces harm in Pakistan:
...as he is Pashtun and they have been targeted by Urdu speaking Indian Muhajirs who are members of MQM. It is claimed the applicant’s family are associated with the ANP and this places them at risk of harm.
[19] CB 335 at [18]
The applicant contends that the Tribunal did not consider the claim that the applicant had a well-founded fear of persecution on the basis of his ethnicity as a Pashtun, the persecutors feared being Urdu speaking Indian Muhajirs who are members of the MQM. That failure is said to constitute a jurisdictional error[20].
[20] Minister for Immigration v Yusuf (2001) 206 CLR 323, per McHugh, Gummow and Hayne JJ at 351-352 [82]-[84] (Yusuf’s case)
Minister’s submissions
The Minister rejects the applicant’s assertion that the Tribunal failed to consider a claim by the applicant, namely that the applicant was a Pashtun who feared harm from Muhajirs. The claim was recorded at [18] of the Tribunal’s decision as follows:
As he is Pashtun and they have been targeted by Urdu speaking Indian Muhajirs who are members of MQM. It is claimed the applicant's family are associated with the ANP and this places them at risk of harm.
The Minister submits that, contrary to what is asserted, the Tribunal did consider this claim. At [48][21] the Tribunal accepted that the applicant was a Pashtun (and Sunni Muslim), but it did not accept that these factors would cause the applicant any concern upon his return to Swat district in Pakistan. Although the Tribunal did not make any express reference to “being targeted by Urdu speaking Indian Muhajirs”, it did not need to. The basis of the claim was the applicant's ethnicity, and the Tribunal found that the applicant would not suffer any persecution for reason of his ethnicity. Further, in circumstances where the Tribunal itself recorded the claim, this Court should not infer that the claim was overlooked[22].
[21] CB 340
[22] Applicant WAEE v Minister for Immigration (2004) 75 ALD 630 at [47]
Resolution
The first ground does not establish any jurisdictional error. A thorough examination of the court book reveals that the applicant’s claim in respect of the Muhajirs developed over time and sought to draw a link to the Refugees Convention based both upon the applicant’s ethnicity (as a Pashtun) and because of his political opinion (as a supporter of the Awami League)[23].
[23] see CB 59; 60; 148; 242; 278 [22]; 313-314; 340 [47]
The claim based upon the applicant’s ethnicity had no connection to the Swat Valley. That claim was raised in the context of the proposition that the applicant might relocate to avoid the harm he feared in the Swat Valley. The Muhajirs claim as raised by the applicant arose outside the Swat Valley in Urdu speaking regions of Pakistan. Because the Tribunal made no relocation finding, it was unnecessary for the Tribunal to deal with that aspect of the applicant’s claims.
The claim based upon political opinion fell away because the Tribunal rejected the applicant’s claim to have been a member of or associated with the Awami League[24]. The Tribunal found at [41] that the applicant was not a member of the Awami League or of any other party[25]. At [45][26] the Tribunal found that it did not accept the applicant’s claim of being a member of, or associated with, any political party as being true. In that respect, I accept that the political component of the Muhajirs claim was subsumed in a finding of greater generality.
[24] the ANP
[25] CB 339
[26] CB 340
Issue 2 – claim re ethnicity – applicant’s contentions
The applicant claimed that he returned to Pakistan on or around October 2009[27]. He claimed that he had spoken up against the Taliban to friends and family[28]. As a consequence, he claimed he was threatened by the Taliban and told to stop saying things against the Taliban, after which he was “a prisoner in his own home”[29].
[27] CB334 at [17]
[28] CB334 at [17]; CB337 at [26]
[29] CB335 at [20]
The Tribunal found the following[30]:
Additionally, if the Taliban sought to harm the applicant as he claims, they had the opportunity to do so while he was in his home village from October to December 2009. I do not accept as reasonable his claim that he was able to avoid harm as he stayed inside. I find that he was not targeted by them and left his village as he normally would after a few months at home and to take up yet another contract on a ship.
[30] CB339 at [43]
The applicant submits that that was not the claim put by him. He did not assert that the Taliban sought to harm him after he stayed inside, as a result of the threat. The harm was that he had to stop expressing his political views, being that he had to stop speaking against the Taliban, which is what he did. As he stated, “he was a prisoner in his own home”[31].
[31] CB335 at [20]
The applicant submits that the Tribunal had to consider whether the threat was made, and or whether the applicant would refrain from expressing his political views in relation to the Taliban, out of a fear of harm, should he return to Pakistan. That is advanced either as a failure to consider an integer of his claims or as a misinterpretation of the applicable law.
The applicant further contends that the Tribunal had to consider whether the applicant would refrain from expressing his views about the Taliban out of a fear of harm and, if so, whether having to so refrain constituted persecution or significant harm. It is said to have failed to do so, thereby committing jurisdictional error[32].
[32] Yusuf’s case per McHugh, Gummow and Hayne JJ at 351-352 [82]-[84]
Minister’s contentions
The Minister notes that the applicant asserts that the Tribunal misapplied or misinterpreted the law in considering the claim that the applicant had to stop expressing his political views against the Taliban because he was threatened by them, and this caused him to become a “prisoner in his own home”.
In his statutory declaration made on 23 March 2011, the applicant stated[33]:
…I began to openly speak out against the Taliban. I was open about my opposition to them and all their activities. I received a call in October 2009 from a member of the Taliban. I was told I should shut my mouth of suffer the consequences. I hadn't realised the Taliban still had a presence in the valley; I had now endangered my life. My family asked me not to leave the house too much as I was now in danger. For about 2 months I remained a prisoner inside my home in order to stay safe and avoid attacks from the Taliban).
[33] CB 44
This claim was repeated in the same form in the applicant's statutory declaration dated 7 July 2013[34]. The Tribunal makes reference to this claim at [17]-[20] and at [26] of its decision, and at [45] it set out its findings:
Overall, I find that the applicant is not a credible witness. I do not accept his claims of being a member of, or associated with any political party as being true. I do not accept his claims of being targeted by the Taliban as being true. I do not accept he has spoken out against them or any letters or threats have been made against him. I find that he has fabricated significant aspects of his claims so has to enhance his claims for a protection visa.
[34] CB 276
In his amended application and written submissions, the applicant has focused on (and isolated) [43] of the Tribunal’s decision, submitting that these reasons misconstrued the claim before it. However, this paragraph simply sought to record its concerns which had been put to the applicant at the hearing[35] that, if it was true that the Taliban wanted to harm the applicant after he had spoken out against them, they had the opportunity to do so. The Minister notes that the factual basis of the claim was wholly rejected at [45] for reason that the Tribunal found that the applicant was not a credible witness. Therefore, contrary to what is asserted the Tribunal did not have to consider whether the applicant would have to refrain from expressing his political views, in circumstances where it rejected that the applicant had ever expressed his political views and that he had ever been targeted because of that expression.
[35] see [26]
Resolution
The applicant feared being killed or otherwise seriously physically harmed by the Taliban in the Swat Valley. The applicant could not know whether the Taliban actually wanted to kill him and did not make that claim. His claim was that he had been threatened with death if he did not cease his opposition to the Taliban. He claims that he kept to his house and thereby avoided the threatened harm. Viewed in this light, the Tribunal’s finding at [43] appears to begin with a misconstruction of the applicant’s claim. It may not have been plausible (or reasonable) that the applicant could avoid being killed by the Taliban simply by staying inside his home but it would seem to have been plausible that he could avoid being killed by doing what the Taliban required of him.
Nevertheless, I do not accept that the assertion of error by the Tribunal is established when reference is made to the clear and comprehensive adverse credibility findings made by the Tribunal at [44]-[46][36]. The Tribunal clearly rejected the factual foundations for the applicant’s claim of being threatened by the Taliban. It rejected his claim that his mother had been killed by the Taliban and rejected his claim that he had spoken out against the Taliban. Having rejected that factual foundation for the applicant’s claims, there was nothing else requiring consideration by the Tribunal.
[36] CB 340
Conclusion
The applicant has failed to establish any jurisdictional error in the decision of the Tribunal. The decision is therefore a privative clause decision and the application must be dismissed.
I will hear the parties as to costs.
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 17 December 2014
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