SZRTV v Minister for Immigration - [2013] FMCA 102

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZRTV v MINISTER FOR IMMIGRATION & ANOR

[2013] FMCA 102

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution in Pakistan by the Taliban – applicant’s fears found not to be well-founded – no jurisdictional error.

Migration Act 1958 (Cth), s.425

Applicant:

SZRTV

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1950 of 2012

Judgment of:

Driver FM

Hearing date:

19 February 2013

Delivered at:

Sydney

Delivered on:

19 February 2013

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents:

Ms A Carr
DLA Piper

ORDERS

The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $6,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1950 of 2012

SZRTV

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application to review a decision of the Refugee Review Tribunal (the Tribunal). The decision was made on 10 August 2012. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant is from Pakistan and had made claims for protection based upon his fear of the Taliban. The following statement of background facts relating to the applicant’s claims and the Tribunal decision on them is derived from the Minister’s written submissions filed 5 February 2013.
The applicant is a male citizen of Pakistan.[1] He arrived in Australia on 14 February 2009.[2] The applicant applied for a protection visa on 23 November 2010.[3] The applicant claimed to fear persecution:
a)by the Taliban because of his actual or imputed political opinion;
b)by pro-Taliban government agencies;
c)because of his Pashtun ethnicity.
[1] court book (CB) 59
[2] CB 62
[3] CB 1
A delegate of the Minister refused the application on 5 December 2011[4] and the applicant sought review by the Tribunal on 15 December 2011.[5] The applicant attended a hearing before the Tribunal on 19 April 2012,[6] at which dispositive issues were traversed. By decision dated 10 August 2012 the Tribunal affirmed the decision under review, refusing to grant the applicant a protection visa.[7]
[4] CB 120
[5] CB 130
[6] CB 209
[7] CB 226

The Tribunal decision

Relevantly to the application to the Court, the Tribunal accepted on the basis of photographic evidence that the applicant's family home in the Swat Valley was destroyed[8]. It noted the applicant claimed his family was targeted because, although wealthy, they refused to support the Taliban, and because they were well educated and had a liberal outlook[9].
[8] at [71]
[9] at [72]
The Tribunal held[10], as it had put to the applicant at the hearing, the information before the Tribunal indicated that the Pakistan army launched an operation against the Taliban in the Swat Valley in May 2009, and this operation was successful in driving the Taliban out of the Swat Valley. At [74], the Tribunal held that against this background it was not satisfied of the plausibility of the applicant's claim that the family left their home in Kabal in May 2009 because of pressure from the Taliban as a result of the matters claimed. As it had put to the applicant at the hearing, there was nothing in the information provided by the applicant that would account for the timing of the May 2009 departure if it had been precipitated by Taliban targeting.
[10] at [73]
The Tribunal accepted[11] that the applicant's family left their home in Kabal in the Swat Valley in May 2009 and returned to the Swat Valley in August 2009. It found the reason the family did so was that, in common with large numbers of other civilians in the Swat Valley, they were fleeing the intense fighting that erupted when the army launched its operation against the Taliban.
[11] at [75]
The Tribunal recorded[12] the applicant's claim that evidence of his family's specific targeting by the Taliban was to be found in the destruction of the family home. On the basis of information about the intensity of fighting in the Swat Valley when the army launched its May 2009 operation and the destruction of the golf course adjacent to the home by militants, the Tribunal was not satisfied that the applicant's house was deliberately destroyed by the Taliban because they were targeting the applicant's family. It was not satisfied that the house was not destroyed in generalised fighting. It considered the applicant's claim that his house was the only one in the area destroyed but, as the Tribunal had put to the applicant at the hearing, photographic evidence the applicant submitted did not bear this claim out[13].
[12] at [76]
[13] at [76]

The present application

These proceedings began with a show cause application filed on 10 September 2012. The applicant continues to rely upon that application. There is one particularised ground in that application:
1. The Second Respondent denied the Applicant procedural fairness, and/or failed to comply with section 425 of the Migration Act 1958 (Cth) (“the Act”).
Particulars.
1.1 An issue in the hearing and in the decision was whether or not the Taliban had targeted the Applicant’s property for destruction.
1.2 The Applicant provided photos of his destroyed property.
1.3 The Tribunal observed that only one other property could be seen standing in the photos provided, a fact which the Tribunal later used to dismiss the Applicant’[s] claim that his property alone was destroyed, and to support its finding that the Applicant’s property was the subject of random damage, and not specifically targeted (Reasons for decision [76]).
1.4 The Applicant invited the Tribunal to perform a Google search with the Applicant’s help on the Tribunal’s computer, to which he did not respond, which misled the Applicant into thinking that he would perform the search himself, or that he accepted the Applicant’s evidence.
1.5 As a result, the Applicant was denied the opportunity to provide a copy of the Google search, which would have clearly demonstrated that his compound alone was destroyed, with surrounding properties intact.
The applicant also filed written submissions on 24 January 2013, in which the applicant asserts illogicality and, it appears, bias.
I received as evidence the court book filed on 25 October 2012.
I also received the affidavit of Katherine Nicole Hooper made on 12 December 2012, to which is annexed a transcript of the hearing conducted by the Tribunal.
The allegation of procedural unfairness raised by the applicant requires an examination of what occurred before the Tribunal. The applicant’s claim is that the Tribunal, in effect, gave an undertaking to make inquiries using Google Earth or Google Maps technology, in order to attempt to verify the applicant’s claim that his family’s house was specifically targeted by the Taliban and that other properties around it were left intact.
That assertion, as is pointed out in the Minister’s submissions, is not supported by the transcript of the Tribunal hearing. That transcript establishes that the Tribunal presiding member, noting that the photographic evidence provided by the applicant was inconclusive, agreed to give the applicant the opportunity to himself provide some better evidence, possibly through the use of Google Maps. I agree with the Minister’s submissions on this issue.
The Minister's delegate[14] recorded that country information described:
a very volatile situation in the Swat Valley at the time the applicant claims his home was destroyed … Whether the applicant's home was destroyed by the Taliban or the Pakistani military is not clear. Country information indicates that homes were destroyed by the military as a result of indiscriminate attacks in fighting the Taliban.
[14] at page 7 (CB 126)
The delegate accepted the applicant's home was destroyed. The delegate did not make a finding as to whether the applicant's home was deliberately targeted. At page 9 of his decision[15], the delegate stated that he acknowledged “that the applicant's family has been the victim of conflict in the Swat Valley in the past…” and further that, prior to his departure from the country, the applicant “had not experienced any attention that would indicate he was suspected of involvement with the Taliban”.
[15] CB 128
Reading the delegate's decision fairly and as a whole, although the delegate did not make an express finding on the issue of specific targeting of the applicant's home, the applicant was not entitled to conclude from the delegate's decision that this matter was decided in his favour. Rather, the delegate's decision properly construed demonstrates that the delegate (implicitly) found that the family home was destroyed in the volatile conflict situation in the area, as described by the country information cited by the delegate.
Further, and significantly, it is apparent from the Tribunal’s summary of the hearing at [47] and in its findings at [73]-[76] that the applicant was on notice that an issue arising in relation to the review was whether his family home was specifically targeted by the Taliban for destruction[16].
[16] See further the affidavit of Katherine Nicole Hooper affirmed and filed on 12 December 2012 at 28 (from line 18), at 33 (from line 20), at 34 (from line 1), and at 39-40 (from page 39 line 50)
There is no evidence of the matters particularised by the application at 1.4. The transcript of the hearing annexed to the affidavit of Ms Hooper directly contradicts particular 1.4. Page 34 of the affidavit of Ms Hooper records the following relevant dialogue (lines 24-50):
TRIBUNAL MEMBER: Do you have copies of those photographs there?
ADVISER: Yep.
TRIBUNAL MEMBER: Yes.
Q. There we are. Yes, I’ve got the photographs now.
A. Yeah. I think I can’t see there actually.
Q. One of them does show another building.
A. Yeah, that - they didn’t--
Q. Yes, that’s the one I’m looking at. One of them does show another building that does seem to be intact, but is that the only evidence that you’ve got to say--
A. Yeah.
Q. --that yours was the only house that--
A. I - I can show you this on the Google, you know - Google maps.
Q. Well, maybe if you can do a print of a Google--
A. Google map.
Q. --map and maybe you’ll submit it later. All right. Now, just going on, we’ve spoken about the Taliban. You also said - and we were talking about it a little earlier, but you also claim that you’d be killed by the government or at least some parts of the government, some--
The ground and particulars to the application to this Court cannot succeed in the face of the above evidence.
The applicant's written submissions filed on 24 January 2013 allege:
a)actual bias; and
b)illogicality.
As to the allegation of actual bias, such an allegation must be properly particularised and clearly proved. This has not occurred. There is simply nothing to suggest that the Tribunal approached its task with anything other than an open mind. The applicant contends that the Tribunal erred in giving no weight to his photographic evidence, on the basis of an adverse credibility finding. However, that is not how the Tribunal reasoned. The Tribunal accepted on the basis of the applicant's photographic evidence that his family home in the Swat Valley had been destroyed[17]. The Tribunal was not satisfied that that evidence established that the home was the only one in the area to be destroyed.
[17] at [71]
As to the allegation of illogicality, the particulars disclose that this ground is properly characterised as an attempt at impermissible merits review. Further, the Tribunal comprehensively considered the integers of the applicant's claims, including his claim to fear persecution for reason of his Pashtun ethnicity[18], his claim that he would be regarded as “pro-infidel” for reason of his time in Australia[19], and his claim that his family had been targeted by the Taliban, including for reason of their wealth[20].
[18] see CB 230-231, CB 244 [68], and CB 247-248[86]-[88], and compare particulars (a) and (f) of the applicant's submissions
[19] CB 243 [68] and CB 246 [78], and compare particular (c)
[20] see, especially, CB 246 [79] and CB 246-247 [81], and compare particulars (b) and (d)
The applicant is concerned about the outcome of his review application before the Tribunal and the reasoning process adopted by the Tribunal. He points out that the military and political situation in Pakistan is unstable, in particular in the Swat Valley and elsewhere, including Karachi and that he has genuine fear for his own safety and that of his family. He is concerned that the Tribunal has not effectively dealt with his claims of a well founded fear of harm in Pakistan, given the available evidence of circumstances in that country.
He is, of course, entitled to his views and I express no view on whether the Tribunal reached the correct or preferable decision, based upon the applicant’s claims. The only issue for me to resolve, however, is whether the Tribunal’s decision, whether right or wrong, is a legally valid one. I find that it is. There is no evidence to support the allegation of illogicality or bias. The Tribunal’s decision, while it certainly might have been different, based upon the available material, was a logically reasoned one, based on that material.
The applicant has been unable to demonstrate jurisdictional error in the decision of the Tribunal. It is, therefore, a privative clause decision and the application must be dismissed. I will so order.
In consequence of the dismissal of the application, the Minister seeks an order for costs, fixed in the amount of $6,000. The applicant indicated that he would have difficulty paying that sum immediately. I am satisfied, nevertheless, that costs of not less than $6,000 have been reasonably and properly incurred on behalf of the Minister, when assessed on a party/party basis.
I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $6,000.

I certify that the preceding twenty seven (27) paragraphs are a true copy of the reasons for judgment of Driver FM

Date: 20 February 2013