SZRTV v Minister for Immigration and Citizenship
[2013] FCA 383
•29 April 2013
FEDERAL COURT OF AUSTRALIA
SZRTV v Minister for Immigration and Citizenship [2013] FCA 383
Citation: SZRTV v Minister for Immigration and Citizenship [2013] FCA 383 Appeal from: SZRTV v Minister for Immigration & Anor [2013] FMCA 102 Parties: SZRTV v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL File number: NSD 360 of 2013 Judge: ROBERTSON J Date of judgment: 29 April 2013 Catchwords: MIGRATION – allegation of procedural unfairness in the course of the hearing before the Refugee Review Tribunal – allegation of actual bias on the part of the Tribunal – allegation of illogicality in the reasoning of the Tribunal – relevance of events subsequent to the Tribunal’s decision Legislation: Migration Act 1958 (Cth) s 425 Date of hearing: 29 April 2013 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 39 Counsel for the Appellant: The Appellant appeared in person with the aid of an interpreter Counsel for the First Respondent: Ms K Hooper of DLA Piper Australia Counsel for the Second Respondent: The Second Respondent submitted save as to costs
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 360 of 2013
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: SZRTV
AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
ROBERTSON J
DATE OF ORDER:
29 APRIL 2013
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the first respondent’s costs in the fixed amount of $2,650.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 360 of 2013
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: SZRTV
AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
ROBERTSON J
DATE:
29 APRIL 2013
PLACE:
SYDNEY
REASONS FOR JUDGMENT
This appeal is from orders of the Federal Magistrates Court of Australia (now the Federal Circuit Court of Australia) made on 19 February 2013 dismissing, with costs, the application for review to that Court.
The Refugee Review Tribunal (the Tribunal), on 10 August 2012, affirmed the decision of the delegate made on 5 December 2011 not to grant the appellant a Protection (Class XA) visa.
The appellant is from Pakistan and had made claims for protection based upon his fear of the Taliban.
The Tribunal’s findings and reasons were as follows.
Under the heading “Anti-Taliban political opinion”, at [70]-[82], the Tribunal said that it was not satisfied that three of the appellant’s brothers had disappeared as he claimed. Nor was the Tribunal satisfied that three of the appellant’s brothers did not accompany his mother and other members of the family when they returned to Kabal from Rawalpindi in August 2009. The Tribunal found this cast doubt over the truth of other claims the appellant had made although the Tribunal accepted, on the basis of the photographic evidence, that the appellant’s family home in Swat had been destroyed.
The Tribunal said the appellant claimed his family was targeted because, although they were very wealthy, they refused to provide any support for the Taliban. The appellant suggested that additional reasons were that they were educated and that they had a liberal outlook. He claimed this targeting caused his family to flee from their home and led the Taliban to destroy the house. The Tribunal said there was nothing in the information the appellant had provided which would account for the timing of their departure in May 2009 if that departure had been precipitated by any targeting from the Taliban.
The appellant referred to the destruction of the family home as being further evidence of the Taliban’s specific targeting of the appellant’s family. The Tribunal said, in circumstances I consider more fully below, that it was not satisfied that the appellant’s house was deliberately destroyed by the Taliban because they were targeting his family.
The Tribunal said it had further concerns about the plausibility of the appellant’s claims that the Taliban had the intent and capacity to harm him in Swat given his evidence that at least some of his family members returned to Swat in August 2009 and had remained there without suffering any harm.
The Tribunal also considered the associated claim that the appellant would be a target of the Taliban as a result of his years in Australia, as they would impute to him a “pro-infidel” viewpoint. The Tribunal did not accept this claim. The Tribunal said the appellant had provided no information to indicate that Pakistanis who returned after living in Australia or other Western countries were seen in that light by the Taliban or that they suffered harm from the Taliban for such a reason. Nor was it evident why the appellant believed that he himself would have been singled out for such a reason. The Tribunal noted that the appellant had been absent from Pakistan since September 2007, apart from his return visit in early 2009, that the appellant did not claim ever to have met a member of the Taliban let alone to have been threatened harm by them, and that he had never had any dealings with them even by telephone. Nor had he ever joined a political party or expressed a political opinion in any public way. Moreover, to the extent that this claim was more than simply speculative, the Tribunal was not satisfied that the Taliban had any ability to harm him in Swat.
Taking these considerations together, the Tribunal was not satisfied that the appellant’s family had been, or were now, targeted by the Taliban or that they had ever suffered harm, through loss of their house or in any other way, for this reason. The Tribunal was not satisfied that they had ever been placed on a “hit list” broadcast in the area by the Taliban or that there was any other indication that the Taliban had taken an adverse interest in them.
The Tribunal also considered the independent country information concerning the Taliban’s ability to mount operations in Swat.
The Tribunal concluded this part of its consideration of the claims as follows:
81.Given these conclusions I am not satisfied that the [appellant] himself has ever been targeted by the Taliban because he is a part of a family that has been targeted - whether because his family are wealthy and educated, because other members of the clan had joined the Taliban or because they have resisted Taliban demands for support - or that he is now a Taliban target for this reason. Nor do I accept that the Taliban, whether or not they have sympathisers in government agencies, have the ability to harm him in his home area of Swat. I am not satisfied that if he returned to take up residence in Swat he would need to remain in hiding or that he could not live his life freely there. I would add in this regard that I am not satisfied that the mental problems referred to by the [appellant] at the hearing - problems for which he had not sought medical help - would prevent him from returning to his previous life in Swat.
82.I am not satisfied there is a real chance that if the [appellant] returned to Swat he would suffer harm from the Taliban, or from Taliban sympathisers within government agencies, because of a real or imputed anti-Taliban political opinion.
Under the heading “Imputed pro-Taliban political opinion”, at [83]-[85], the Tribunal said there was nothing in the information before the Tribunal to indicate that Pakistanis were suspected by their government of supporting the Taliban simply because they were ethnically part of the country’s Pashtun minority, the second largest ethnic group in the country. Nor was there anything to indicate that the appellant had ever suffered harm of any kind at the hands of the Pakistan authorities for such a reason, including at the airport on arrival and departure. The Tribunal noted that the appellant’s family gave some practical support to the neighbouring army camp, suggesting strongly that they would be known by the authorities as loyal to the government’s cause. Taking those considerations together the Tribunal was not satisfied there was a real chance that the appellant would suffer harm at the hands of the authorities because, as a Pashtun, he was suspected of supporting the Taliban cause.
Under the heading “Discrimination as a Pashtun”, at [86]-[88], the Tribunal said there was nothing in the country information to indicate that Pashtuns in Swat suffer discrimination of any kind because of their ethnicity or that even if they were imputed with membership of the Awami National Party this would be a source of harm. Nor did the appellant claim that he or other members of his family had ever suffered discrimination in Swat in the past or been involved in “ethnic political violence” because of their Pashtun ethnicity. The Tribunal said that whatever may be the case in other parts of Pakistan he was not satisfied there was a real chance that the appellant would suffer harm because of his Pashtun ethnicity if he were to return to live in his home area of Kabal in Swat.
The grounds of review in the Federal Magistrates Court were as follows:
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
1.1An 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.
1.3The 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]).
1.4The 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.
1.5As 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 Tribunal’s decision and reasons relevant to the issue of targeting by the Taliban included:
47.I observed that in his original Statutory Declaration the [appellant] had indicated he was not sure who had been responsible for the destruction of his house but in his most recent submission and in his evidence at the hearing he had been definite that the Taliban were responsible. He said that since preparing his original Statutory Declaration in 2010 he had received ‘one hundred percent information’ that it was the Taliban. Asked how he had found this out he said he interacted with some of his friends in the surrounding villages. He spoke to them by telephone. When the Taliban did something they announced their responsibility some time later. I put to him that since the house was located adjacent to a military establishment its destruction seemed likely to have been the result of a Taliban attack on the army. He said the army could not defend itself - how could it secure his house? I suggested that there had been great destruction of property during the fighting in Swat and it seemed possible the house was blown up in the course of this fighting rather than because the Taliban had anything against him or his family. He said other houses, including much bigger houses, had not been blown up - these were shown in the photographs he had submitted of the ruins of his house. Asked to point it out from the photographs he was unable to do so. I noted that one of the photographs appeared to show an intact building behind the ruins of the house. He confirmed this was the only evidence in the photographs and suggested satellite maps might provide a better view.
…
53. Asked how he knew he had been targeted by the Taliban the [appellant] said his family had been targeted and his house had been demolished by a bomb…
…
71. … I accept, on the basis of the photographic evidence, that his family home in Swat has been destroyed.
…
76. The [appellant] claims that further evidence of the Taliban’s specific targeting of his family is to be found in the destruction of his family home. He also claims that orchard trees he owned had been cut down although it was unclear from his evidence at the hearing when it was that this had happened and he appeared to suggest that it was some years before the destruction of the house. He confirmed that claim in his Statutory Declaration that the house was adjacent to an army camp, clarifying that the camp was a temporary one set up on a government-owned golf course. I note there is country information indicating that an army camp was established in 2007 on the government-owned Kabal golf course and I accept that the [appellant’s] house was adjacent to this golf course. I am also prepared to accept the truth of his claim that his family gave some assistance to the army camp by providing electricity and water, although it is somewhat difficult to understand how, living in a residential house, they were able to do this. However, given the information available to the Tribunal about the intensity of fighting in Swat when the army launched its operation in May 2009, and the destruction of the Kabal golf course by militants, I am not satisfied that the [appellant’s] house was deliberately destroyed by the Taliban because they were targeting his family. I am not satisfied it was not, instead, destroyed in generalised fighting between the army and the Taliban. I have considered the [appellant’s] claim that his was the only house in the area to have been destroyed but, as put to him at the hearing, the photographic evidence he has submitted does not bear this out, showing only a relatively distant view of one other building.
The grounds of appeal to this Court were as follows:
1.The FM failed to consider that the Tribunal acted in a manifestly unreasonable way when dealing with the applicant [sic] claim and ignoring the aspect of persecution and harm in terms of Sec.91R of the Act. The Tribunal failed [sic] to observe the obligation amounted to a breach of Statutory Obligation.
2.The learned Federal Magistrate has dismissed the case without considering the legal and factual errors contained in the decision of the RRT.
The Federal Magistrate (as his Honour then was) had before him the affidavit of Katherine Nicole Hooper made on 12 December 2012 annexing a copy of the transcript of the hearing on 19 April 2012 before the Tribunal.
The Federal Magistrate said that the appellant’s claim of procedural fairness was that the Tribunal, in effect, gave an undertaking to make enquiries using Google Earth or Google Maps technology, in order to attempt to verify the appellant’s claim that his family’s house was specifically targeted by the Taliban and that other properties around it were left intact.
The Federal Magistrate said that that assertion was not supported by the transcript of the Tribunal hearing. The transcript established that the Tribunal, noting that the photographic evidence provided by the appellant was inconclusive, agreed to give him the opportunity to himself provide some better evidence, possibly through the use of Google Maps. The transcript was:
Q. … What I guess I’m really saying here is that it does seem – given that there was a lot of destruction of property during the fighting in Swat, it does seem possible that this house was attacked, not because the Taliban had anything against you—
…
Q. Not because the Taliban had anything against you or members of your family but, simply, here was a house that was beside an army camp and they were attacking the army camp and so they blew up the house that was beside it. Can you comment on that?
A. Yeah, because if you will see the picture, you know, there are other houses which are, you know, much bigger from [sic] my house but they are still there, you know.
Q. I didn’t see those in the photographs. I’ll give you the photographs if you could just point that out.
A. Yeah, I would—
Q. I’ve obviously overlooked it.
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.…
Further, the appellant was not entitled to conclude from the delegate’s decision that the appellant’s home was specifically targeted. Rather, 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, the Federal Magistrate said, as was apparent from the Tribunal’s summary at [47] and its findings at [73]-[76] the appellant 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.
The Federal Magistrate held that the grounds and particulars of the application to the Federal Magistrates Court could not succeed in light of the transcript set out at [20] above.
The Federal Magistrate also said that written submissions filed on behalf of the appellant on 24 January 2013 alleged actual bias and illogicality.
The Federal Magistrate said that the allegation of actual bias had not been properly particularised and clearly proved. There was simply nothing to suggest that the Tribunal approached its task with anything other than an open mind. The appellant contended, before the Federal Magistrates Court, that the Tribunal erred in giving no weight to his photographic evidence, on the basis of an adverse credibility finding. However, the Federal Magistrate said, that was not how the Tribunal reasoned. The Tribunal accepted that his family home in the Swat Valley had been destroyed: the Tribunal was not satisfied that that evidence established that the home was the only one in the area to be destroyed.
As to the allegation of illogicality, the Federal Magistrate said that the particulars disclosed that the ground was properly characterised as an attempt at impermissible merits review. Further, the Tribunal comprehensively considered the integers of the appellant’s claims, including his claim to fear persecution for reason of his Pashtun ethnicity, his claim that he would be regarded as “pro-infidel” by reason of his time in Australia, and his claim that his family had been targeted by the Taliban, including for reason of their wealth.
The appellant pointed out that the military and political situation in Pakistan was unstable, in particular in the Swat Valley and elsewhere, including Karachi, and that he had genuine fear for his own safety and that of his family. The Federal Magistrate said that the appellant was concerned that the Tribunal had not effectively dealt with his claims of a well-founded fear of harm in Pakistan, given the available evidence of circumstances in that country.
The Federal Magistrate said he was not concerned with the merits but only with whether the Tribunal’s decision was a legally valid one. His Honour found that it was. He said there was no evidence to support the allegation of illogicality or bias. His Honour held that the Tribunal’s decision was a logically reasoned one, based on the available material.
In my opinion the grounds of review in the Federal Magistrates Court were untenable. In light of the transcript there was no denial of procedural fairness as then claimed.
I note the appellant would need the leave of the Court to rely on those grounds to the extent that they go further than the claim of procedural fairness the subject of the written application to the Federal Magistrates Court and the grounds of actual bias and illogicality which the Federal Magistrate appears to have permitted to be raised in that Court. I agree with the Federal Magistrate that there is no basis whatever for alleging actual bias. I also agree with the Federal Magistrate that there is no basis for alleging illogicality.
As to the notice of appeal to this Court, plainly it has not been drafted with the circumstances of this proceeding in mind. The grounds of appeal are formulaic. They do not engage with the findings of either the Tribunal or the Federal Magistrates Court.
More importantly, apart from expressing the appellant’s disagreement with the conclusions of the Tribunal, the grounds set out in the notice of appeal to this Court are not of any substance.
As to ground 1, that the Federal Magistrate “failed to consider that the Tribunal acted in a manifestly unreasonable way when dealing with the applicant [sic] claim and ignoring the aspect of persecution and harm in terms of s 91R of the Act” and that “the Tribunal failed to observe the obligation amounted to a breach of Statutory Obligation [sic]”, as articulated these matters go only to the merits. Manifest unreasonableness is not made out. No basis appears for invoking or referring to s 91R. The Tribunal did not rely on or refer to that section.
As to ground 2, it is plain from the terms of his Honour’s reasons that the Federal Magistrate did consider the matters put to him, that is the legal and factual errors alleged to be contained in the decision of the Tribunal.
In oral submissions before this Court the appellant made three points. I consider them on their merits although they are raised in this Court for the first time.
The first point was a question of further time to make searches as to the whereabouts of the appellant’s three brothers, a matter raised in the hearing before the Tribunal. In my view there was no denial of procedural fairness in this respect. The context in which the matter arose was the absence of material from the appellant as to searches for his three brothers. The appellant’s then adviser indicated that any such search would take a long time. The Tribunal made it clear that it could not delay a decision on that basis. There was no request for an adjournment. In oral submissions before this Court the appellant said it was difficult to make those enquiries but in my view that is not presently relevant. Neither is the period between the date of the hearing and the date of the Tribunal’s decision, that is, between 19 April 2012 and 10 August 2012, presently relevant. In my opinion there is no substance in this first point.
The second point was a variant of the Google Maps contention. The appellant submitted before this Court that he did not understand that the Tribunal was leaving it to him to provide the Google Map relating to the targeting, as he contended, of his house by the Taliban. In my opinion, however, a mere misunderstanding on the part of the appellant which was not contributed to or caused by the Tribunal could not constitute a lack of procedural fairness. I note the appellant did not raise this matter with the Tribunal. In my opinion there is no substance in this second point.
The third point related to events subsequent to the Tribunal’s review as to the worsening situation, according to the appellant, in his country or his region. These matters were not, by definition, before the Tribunal and the Tribunal could not be said to have erred in respect of them. Those matters could go only to the merits, which this Court does not have jurisdiction to entertain. In my opinion there is no substance in this third point.
For these reasons the appeal is dismissed, with costs. I accede to the first respondent’s application for a fixed costs order in the amount of $2,650.
I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Robertson. Associate:
Dated: 30 April 2013
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