SZSJG v Minister for Immigration and Border Protection
[2013] FCA 1155
•5 November 2013
FEDERAL COURT OF AUSTRALIA
SZSJG v Minister for Immigration and Border Protection [2013] FCA 1155
Citation: SZSJG v Minister for Immigration and Border Protection [2013] FCA 1155 Appeal from: SZSJG v Minister for Immigration and Citizenship [2013] FCCA 606 Parties: SZSJG v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and REFUGEE REVIEW TRIBUNAL File number: NSD 1337 of 2013 Judge: FOSTER J Date of judgment: 5 November 2013 Legislation: Migration Act 1958 (Cth) Cases cited: SZSJG v Minister for Immigration and Citizenship [2013] FCCA 606 related Date of hearing: 5 November 2013 Place: Sydney Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 28 Solicitor for the Appellant: The Appellant appeared in person with the aid of an interpreter Solicitor for the First Respondent: Ms A Crittenden of Clayton Utz Solicitor 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 1337 of 2013
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: SZSJG
AppellantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
FOSTER J
DATE OF ORDER:
5 NOVEMBER 2013
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The name of the first respondent be changed from “Minister for Immigration and Citizenship” to “Minister for Immigration and Border Protection”.
2.Leave be granted to the first respondent to file in Court the affidavit of Reuben Reyes Ray affirmed on 4 November 2013.
3.The appeal be dismissed.
4.The appellant pay the first respondent’s costs of and incidental to the appeal assessed in the amount of $5,000 plus GST.
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 1337 of 2013
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: SZSJG
AppellantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
FOSTER J
DATE:
5 NOVEMBER 2013
PLACE:
SYDNEY
REASONS FOR JUDGMENT
By Notice of Appeal filed on 11 July 2013, the appellant appealed from a decision of a judge of the Federal Circuit Court of Australia delivered on 24 June 2013 (SZSJG v Minister for Immigration and Citizenship [2013] FCCA 606) by which the Circuit judge dismissed an application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal) dated 8 November 2012.
BACKGROUND AND CLAIMS
The appellant is a Pakistani citizen who first arrived in Australia on 2 July 2008. He entered on a student visa. On 23 May 2011, the appellant applied for a Protection (Class XA) visa. After interviewing the appellant and obtaining other information from him, a delegate of the first respondent (the Minister) refused the appellant’s application for a protection visa on 24 November 2011.
The appellant claimed to be an active of member of the Awami National Party (ANP), having joined that party in 1990. As a result, the appellant claimed he was threatened by the Taliban. The appellant claimed that he fled to Australia in 2008 on the advice of his family who were concerned that he would no longer be safe in Pakistan.
The appellant claimed to have returned to Pakistan in 2011 because his daughter was in need of medical treatment for an eye problem which had developed. He claimed that, about a week after his return, the Taliban found him and warned him that they had not forgotten his past involvement with the ANP. Further, they knew he had been in Australia and told him that they were concerned that he had adopted “western thinking”.
The appellant claimed that, while walking with his daughter, he was attacked by 20 to 30 members of the Taliban. He said that the Taliban threatened to kill him. The appellant claimed that he was beaten until he fell unconscious and was later hospitalised. The appellant claimed that, after he recovered, he stayed with a friend at Wah Cantonment which is near Islamabad and that he returned to Australia a month later. He said that now he is afraid to return to Pakistan because the Taliban will kill him. He said that he had in mind that, in 2009, the Taliban killed his cousin. His cousin was a serving officer in the Pakistan army.
The appellant claimed that he delayed applying for a protection visa because he hoped that the situation in Pakistan would become safer or that the Taliban would forget about him.
On 5 December 2011, the appellant applied to the Tribunal for a review of the delegate’s decision. On 10 April 2012, the Tribunal conducted a hearing in respect of that review application. On 8 November 2012, the Tribunal affirmed the delegate’s decision.
THE TRIBUNAL’S DECISION
The Tribunal accepted the appellant’s involvement with the ANP. However, after considering country information, it did not accept that, in 2008, the Taliban had been powerful or was in the majority in the area which he had left to come to Australia. Further, it did not accept that the appellant had been threatened or attacked by the Taliban as he had claimed. In making this finding, the Tribunal referred to the appellant’s lower level involvement in the ANP and his lack of political influence in the area.
The Tribunal considered the appellant’s return to Pakistan in 2011 to be inconsistent with his core claim to fear harm. Further, it did not accept the appellant’s claim that, in February 2011, he had been beaten unconscious and had been hospitalised by a large group of Taliban. This conclusion was ultimately reached because the Tribunal did not accept that the death of the appellant’s cousin in military action could have been a point of reference for the Taliban in respect of the appellant.
At [39]–[65] of its Decision Record, the Tribunal recorded a number of matters which it had put to the appellant as matters which it regarded as reasons why it might not accept the appellant’s story.
As the Tribunal did not accept that the appellant had ever been threatened or attacked by the Taliban, it also did not accept that there was a real chance that the appellant would be persecuted by the Taliban by reason of any political opinion which he might hold based upon his membership of the ANP, his opposition to the Taliban or his western thinking or, indeed, his membership of any social group, were he compelled to return to Pakistan. The Tribunal did not accept that the appellant had a well-founded fear of persecution for a Convention reason now or in the reasonably foreseeable future.
As far as the complementary protection criteria were concerned, the Tribunal accepted that, in recent times, murders, kidnappings and attacks on government officials had taken place in the appellant’s home village. However, it concluded that there was only a remote chance that the appellant would be the victim of such attacks if he were compelled to return to Pakistan. On the evidence before it, the Tribunal was not satisfied that the appellant’s case met the complementary protection provisions of the Migration Act 1958 (Cth).
Based on these findings, the Tribunal affirmed the delegate’s decision.
THE PROCEEDINGS IN THE FEDERAL CIRCUIT COURT OF AUSTRALIA
On 10 December 2012, the appellant sought judicial review of the Tribunal’s decision in the Federal Circuit Court of Australia. In his Amended Application for judicial review dated 20 March 2013 filed in support of that application, the appellant relied upon the following grounds of review:
1.The Tribunal erred by making factual findings that was illogical, irrational and/or without evidence.
Particulars
a) The Tribunal found that the Applicant had never attracted the attention of the Taliban at paragraph 98 of the decision; and that the Applicant had never been attacked by the Taliban;
b) The Tribunal accepted that the Applicant was a member of the ANP in Takhte Nasrati from 1990 to July 2008; had been active in the party in his local area between 2000 and July 2008; his family had been active in the ANP for several generations; and his grandfather was president of the party in District Karak at paragraph 83 of the decision;
c) The Tribunal accepted that the Applicant had expressed his political views to people in his village and in other villages; to students at the school he had attended; and attended political meetings at paragraph 97 of the decision;
d) The Tribunal was provided with extensive country information on the activities of the Taliban in District Karak;
e) The Tribunal was provided with documentary evidence dated 19 May 2011 from the Chairman of the ANP that the Applicant was an important member of the ANP in Takhte Nasrati and his life was not safe in Pakistan due to his strong opposition to the Taliban. The Tribunal did not find that this document was a forgery;
f) The Tribunal’s finding that the Taliban was not “powerful” in Karak at paragraph 84 was in direct contradiction to the evidence provided by the Applicant to the Tribunal.
2.The Tribunal did not correctly inform itself of the test of whether the Applicant had a well-founded fear of persecution for a Convention reason.
Particulars
a) The Tribunal misunderstood the correct test by placing its focus upon whether or not the Applicant was a “high profile” member of the ANP, rather than whether the Applicant was an active member of the ANP over a long period of time, whose family were also members of the ANP;
b) The Tribunal misunderstood the correct test by failing to properly consider whether the Applicant had a well-founded fear of persecution by reason of his membership of a particular social group, being a former teacher who had spent time in Australia with liberal democratic political views that the Taliban would consider repugnant;
c) The Tribunal misunderstood the correct test by failing to properly consider whether the Applicant had a well-founded fear of persecution by reason of his membership of a particular social group, being a relative of a deceased Pakistani army officer in circumstances where the Taliban is opposed to the army of Pakistan;
d) The Tribunal misunderstood the correct test by focussing upon its finding that the Applicant never attracted the attention of the Taliban (at paragraph 97 of the decision) rather than whether there was a real risk the Applicant would attract the attention of the Taliban by reason of his political views and membership of a particular social group.
3.The Tribunal did not properly consider all essential integers of the Applicant’s claim.
Particulars
a) The Tribunal did not properly consider whether the Applicant had a well-founded fear of persecution by reason of his membership of a particular social group, the relevant social group being persons who had been active members of the ANP over a long period of time, whose family were also members of the ANP, whose political and social views are repugnant to the Taliban;
b)The Tribunal did not properly consider the relevance of the Applicant having spent time in Australia; and being a former school teacher who held liberal democratic political and social views repugnant to the Taliban to the issue of whether the Applicant had a well-founded fear of persecution by reason of his membership of a particular social group.
On 24 June 2013, the Circuit judge dismissed the appellant’s application with costs.
His Honour noted the high threshold that applies to findings of irrationality and illogicality. After considering the Tribunal’s Decision Record, his Honour found that the Tribunal had carefully considered the appellant’s claims, including particular circumstances in the appellant’s past. His Honour did not accept that the Tribunal’s factual findings were illogical, irrational or based on no evidence. His Honour rejected ground 1 relied upon by the appellant.
As to the second ground, his Honour found that the Tribunal had correctly and adequately instructed itself in accordance with the relevant test as to whether or not the appellant was a refugee. Ultimately, the Tribunal was not satisfied that the appellant had a profile that would give rise to a real chance of persecution. The Circuit judge reiterated the principle that the weight to be given to the evidence was a matter exclusively within the province of the Tribunal and not a matter for the Court to reassess on judicial review. Further, his Honour found that the Tribunal had rejected the appellant’s claims as particularised in respect of ground 2 either expressly or as part of a finding of greater generality for the reasons which it gave at [98] of its Decision Record.
The Circuit judge rejected ground 3 relied upon by the appellant upon the basis that the Tribunal’s Decision Record made clear that it gave express consideration to the factual matters particularised in that ground.
Ultimately, his Honour concluded that the appellant had failed to demonstrate jurisdictional error on the part of the Tribunal and accordingly dismissed the appellant’s application.
THE APPEAL IN THIS COURT
By Notice of Appeal filed on 11 July 2013, the appellant advanced the following grounds of appeal:
The Federal Magistrate Court should be set aside, my decision should be judge on the basis of humanity. That every prominent political leader and the common political workers have the same party thinking and agenda. My case has been rejected because I am not a prominent political leader. So it makes clear demarcation in human beings.
My decision should be jude [sic] on the basis that all human beings are equal – the Court decision pushed me to inferiority complex because they make a demarcation between a common worker and political leader.
At the hearing before me this morning, the appellant made two substantive submissions. The first was that the Taliban did not make a distinction between what he described as a “common worker” and someone higher up within the ANP. He made the point that all members of the ANP were at risk. The second was that he took issue with the finding at [84] of the Tribunal’s Decision Record, submitting that it was contrary to the evidence before the Tribunal. In particular, he emphasised that the Tribunal had a significant amount of documentary material which indicated that the Karak area was in fact a very dangerous place. At [84] of the Tribunal’s Decision Record, the Tribunal said:
I do not accept, however, that, as the applicant has claimed, the Taliban was powerful or in the majority in his area before he came to Australia in July 2008, nor that he was threatened or attacked by the Taliban as he has claimed. As I put to the applicant, the information available to me suggests that Karak was spared the violence that has affected other areas of Khyber Pakhtunkhwa until the attack on the police station in Karak town in February 2010 (‘Pakistan article says Taleban ability to freely conduct attacks causing concern’, BBC Monitoring Service, 2 March 2010, CX240703). I accept that the District of Karak shares a border with North Waziristan but this does not mean that Waziristan and Karak are in the same place as the applicant claimed at the hearing before me.
The Minister’s advocate submitted that the material which was before the Tribunal did not support the appellant’s submissions. She submitted that the situation in the Karak area had deteriorated since 2010 and that the attacks which were evidenced by the documentary material placed before the Tribunal by the appellant generally supported the proposition that the persons who were attacked were high profile people within the ANP and not persons lower down the hierarchy, such as the appellant.
The Minister’s representative submitted that, in any event, the submissions made by the appellant constituted nothing more than an attempt to revisit the merits of his claims, an approach which was not permissible in the present appeal.
On a fair reading of the Tribunal’s Decision Record, the Tribunal did consider the material to which the appellant drew my attention this morning. Although at [84] the Tribunal recorded its conclusion that it did not accept that the Taliban was powerful or in the majority in the Karak area before the appellant came to Australia in July 2008 and that it did not accept that he had been threatened or attacked by the Taliban as he had claimed, this was a conclusion which was open to the Tribunal on a detailed consideration of all the relevant material. In any event, it is clearly a matter that resides within the exclusive province of the Tribunal’s jurisdiction.
The grounds specified by the appellant in his Notice of Appeal in this Court are difficult to understand. On their face, they do not raise any arguable error to which this Court’s attention should be drawn. As I read the grounds relied upon by the appellant, they seem to rise no higher than an attempt on his part to revisit the merits of his claims. They appear to me to be intended to raise the same points as the appellant raised in the submissions which he made to me this morning. The merits of his claims cannot be re-investigated in this Court at this stage of the proceedings. As the Minister submitted, it was not the role of the Federal Circuit Court of Australia to decide whether, in all the circumstances, the appellant satisfied the criteria for the grant of a protection visa or to determine whether his political activities had attracted the interest of the Taliban. These were matters which fell exclusively within the jurisdiction of the Tribunal.
As the Minister also submitted, on an application for judicial review, the role of the Federal Circuit Court was limited to identifying whether the Tribunal’s decision was affected by jurisdictional error. The role of this Court on appeal is similarly circumscribed except there is the added difficulty that the appellant must demonstrate error on the part of the Circuit judge.
In my judgment, the appellant has been unable to identify appellable error on the part of the Circuit judge. All that the appellant is doing is seeking merits review of his case. This cannot be done in this Court at this stage.
For these reasons, I dismiss the appellant’s appeal. I order that the appellant pay the first respondent’s costs of and incidental to the appeal assessed in the amount of $5,000 plus GST.
I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Foster. Associate:
Dated: 13 November 2013
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