SZSJX v Minister for Immigration

[2013] FCCA 2238

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSJX v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 2238

Catchwords:
MIGRATION – Review of Refugee Review Tribunal decision – whether Tribunal failed to take into account integer of applicant’s claim – whether Tribunal failed to consider evidence produced by applicant – where the applicant claimed he had been inhibited in providing evidence to the Tribunal by his knowledge of the interpreter – whether the Tribunal failed to provide a real opportunity for a hearing.

Legislation:  

Migration Act 1958 (Cth), ss.65, 424A, 425

Applicant: SZSJX

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2956 of 2012

Judgment of: Judge Raphael

Hearing date: 17 December 2013

Date of Last Submission: 17 December 2013

Delivered at: Sydney

Delivered on: 17 December 2013

REPRESENTATION

For the Applicant: In person

Solicitors for the Respondents: Minter Ellison

ORDERS

1. Application dismissed.

2. Applicant to pay the respondents’ costs assessed in the sum of $6,000.00.

3. The name of the First Respondent be amended to ‘Minister for Immigration and Border Protection’.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 2956 of 2012

SZSYZ

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of Pakistan who last entered Australia in 2010. On 10 November 2010 he applied to the Department of Immigration for a protection (class XA) visa under s. 65 of the Migration Act 1958 (Cth).[1]  On 23 December 2011 a delegate of the Minister refused to grant a protection visa.  The applicant applied for a review of that decision from the Refugee Review Tribunal.  He was represented by a migration agent, and he attended a hearing before the Tribunal with the agent.  After the hearing some submissions were made by his agent to the Tribunal, which determined on 12 November 2012 to uphold the decision under review.

   [1] The ‘Act’.

2. The grounds upon which the applicant claimed to be a person to whom Australia owed protection obligations were twofold.  First, he claimed that he was a homosexual, although that claim was later revised to being a bisexual, who had been discovered having relations with another male by his brother in 2003.  As a result of this discovery and disgrace, the applicant was required to leave Pakistan.  He applied for a visa to Thailand, where he lived until 2010, although during that time he travelled to Hong Kong, Malaysia, South Korea, the EU, Switzerland and the United Kingdom as well as Australia.  

3. The second ground was that he had been imputed with a religious opinion of adherence to the Ahmadi sect as a result of his close friendship with a young Ahmadi man who he had known for many years.  The applicant told that he had proof of this very serious claim in the form of two newspaper articles from 2008.  The applicant told the Tribunal that if he was to return to Pakistan, he would be in danger from his family and from others as a result of his sexual orientation and the imputed adherence.

4. The Tribunal questioned the applicant upon his story and put to him the concerns which it had in relation to his claim of a relationship with K.  The Tribunal indicated that it found it difficult to believe that such a relationship could have occurred in a small village.  The Tribunal also noted its concern about his inability to describe any activity of a similar type either during this stay in Thailand or in Australia.  It concluded (at [116] CB387):

   “I do not accept the applicant’s brother discovered the applicant and K in a sexual relationship.  The applicant could not describe the circumstances in which he claimed that his brother caught them together in March 2003.  If the applicant and his friend had been caught by his brother I consider this would have been a significant turning point in his life, and he would have been able to give some narrative which involved how his brother found them, what happened when they were found and what happened immediately after they were found.  If he had been discovered as claimed, then the discovery was a matter within his own experience and I would expect that he would have been able to give some evidence which showed that he recalled these matters and able to give some detail.”

5. In regard to the second claim, this was involved with the first because the applicant told that after the discovery of his relationship, he went and stayed with the family of M, the Ahmadi, and that this gave rise to the imputation which the applicant believed one of his brothers had stirred up and later had published in the newspapers.  The Tribunal’s view about this was that:

“As I do not accept that he and K were discovered by his brother, I also do not accept that after the claimed discovery a village Jirga was called to deal with the issue.  I do not accept that the applicant fled his home with his passport and chequebook before a Jirga was held ... He claimed but I do not accept that he left his home fearing harm and stayed with his friend, M’s family for 2 days.  He claims he told M not to tell M’s family about his circumstances.  However, in evidence he gave earlier in the hearing he suggested a close relationship between his family and M’s family but he later resiled from this evidence and claimed that only his friend M had a close relationship with his family.  He later stated that M only visited his family’s guest quarters and did not have a close relationship with the family;  only with him.  I consider he changed his evidence as the hearing went on to suit propositions being put to him.” ([117] CB387)

1. The Tribunal doubted whether the applicant really had the close relationship with the Ahmadi boy, M, that he claimed but went on to say:

   “However, in the event that I accept that M was from an Ahmadi family I do not accept that the applicant faces harm for imputed religious beliefs as a result of any friendship.  The applicant has given evidence that he is not, and never has regarded himself as an Ahmadi.  He is a Sunni Muslim which is the majority religious group in Pakistan.” ([128] CB389)

2. Corroboration of the imputed political opinion came from two newspaper articles published in 2008.  Copies of these articles were provided to the Tribunal.  The Tribunal determined to check on their veracity given the independent country information concerning the ease with which this type of document could be provided falsely from Pakistan.  It appears that a DFAT Post went to the national library in Islamabad and obtained a copy of one of the newspapers, which it compared with the copy provided by the Tribunal.  It reported back to the Tribunal that the article, which allegedly named the applicant, did not appear in the copy newspaper that it saw.  The Post also reported that it was unable to obtain a copy of the second newspaper.

3. The Tribunal wrote to the applicant, pursuant to s.424A of the Act, providing him with the information that it had obtained from the post regarding these newspapers, and asking for the applicant’s comments. Those comments were provided by the applicant’s migration agent at CB349. The agents wrote again to the Tribunal on 18 September 2012: see CB354, 355. That information was provided to Post, which responded to the Tribunal on 22 October 2012: CB 358, 359. But those responses were not provided to the applicant’s agent.

4. In its findings and reasons, the Tribunal dealt in some detail with these matters [at CB130-132].  It came to the conclusion that it could not accept that the articles were reported in the Pakistani media as claimed.  It noted that the applicant could not give a plausible explanation why some five years after he left Pakistan those two articles appeared on the same date in September and that his friend happened to see them on that date and advised him about the articles.  It stated:

   “I have weighed the evidence of the applicant and the information obtained by the DFAT post and find that I prefer the evidence obtained from DFAT on the existence of the news articles.  I do not accept that the articles appeared in the media and I do not accept that there may have been earlier articles of the same nature which was suggested as a possibility by the applicant.  I also do not accept that the applicant’s explanation that his brother had placed them there out of malice or in an attempt to secure the family lands for himself.  I have not given those articles any weight in considering the applicant’s claims for refugee status or complementary protection.” [132, CB389]

5. The Tribunal dealt with other matters raised in the interview and noted (at [138] and [139] CB390) the applicant’s travels around the region and into Europe over the years in which he remained in Thailand.  The Tribunal concluded that this was not consistent with a genuine fear of persecution because the applicant made no attempt to seek asylum in any of those countries or in Australia on his previous visits.  The Tribunal concluded that it did not accept that the applicant had a genuine fear of persecution and did not consider that the evidence suggested that he faces convention related harm should he return there in the near future.

6. The Tribunal also considered, between [142]-[146] CB391, the applicant’s claim for complementary protection.  It concluded that despite the applicant’s evidence to the contrary, he remained on good terms with members of his family and would not suffer significant harm from them.  It considered that whilst it was more likely than not that should the applicant return to Pakistan he would remain in a large city rather than the small village from which he came, it did not believe that he would face a real risk of significant harm should he return there.

7. On 13 December 2012 the applicant filed an application for review of the Tribunal’s decision with this Court.  There were three grounds of application.  The first was:

   “The second respondent failed to conduct a review of the decision by entirely failing to consider an integer of the Applicant’s claim being:

   a) Claim arising due to the Applicant’s perceived membership of a particular religion in Pakistan.”

   As will be clear from the short rehearsal of the Tribunal decision in these reasons, the applicant’s claim concerning his imputed adherence to the Ahmadi faith was discussed in very considerable detail with the Tribunal and it is quite clear that the Tribunal considered it to be an essential integer of the applicant’s claim and so dealt with it.  This ground cannot succeed.

8. The second ground was:

   “The Second Respondent failed to provide the Applicant procedural fairness by failing to consider evidence put before the Second Respondent in support of the applicant’s claim above.”

9. No particulars are provided of this ground, but I agree with Mr Pinder, who appears on behalf of the Minister, that this is probably a reference to the newspaper articles.  Once again, a clear reading of the Tribunal decision and of its activities in relation to these newspaper articles is that they were most certainly considered.  That they were found wanting is a matter for the Tribunal and not for this Court.  This ground is also unarguable.

10. The third ground is:

    “The second respondent failed to afford the applicant procedural fairness by failing to ensure a real opportunity for a hearing, in that:

    a. Failing to ensure that the interpreter provided was unknown to the applicant and thereby affording the applicant an opportunity to speak in an open and unguarded manner.

    b. The interpreter provided for the hearing was known to the Applicant, who subsequently feared to speak openly about his claims at the hearing.”

11. There have been some decisions of this court on claims concerning the relationship between interpreters and applicants where the question of a failure to provide a real and meaningful hearing in breach of s.425 of the act was considered. In SZIWT v Minister for Immigration & Anor [2007] FMCA 501, Nicholls FM, as his Honour then was, noted that the applicant was required to indicate to the Tribunal that there were problems with the interpreter, who that applicant claimed was a Muslim, members of whose religion he feared. His Honour indicated that the Tribunal must have knowingly failed in its obligation to provide a meaningful opportunity for a hearing, and could not do this if it was unaware of the concerns that the applicant held about the interpreter.

12. In SZRJS v Minister for Immigration & Anor [2012] FMCA 1143, Cameron FM, as his Honour then was, considered a similar matter. In that case, the applicant had specifically requested a Christian interpreter. His Honour found that there was no breach of s.425 because he could not be satisfied that the applicant had established that he was unable to tell the entirety of his story at the Tribunal hearing. Mr Pinder submits, and the court accepts, that in order to make good this claim, an applicant must establish, on the basis of probative evidence:

    (1) the interpreter and the applicant did, in fact, know each other;

    (2) that the applicant was, in fact, inhibited from giving evidence;  and

    (3) that the Tribunal knew or ought to have known that the applicant’s evidence was inhibited in the circumstances. 

13. In this case, there is no evidence of any of those matters.  The applicant told me today that he could prove that he had known the interpreter for two years, but he didn’t tell the Tribunal that.  In regards to being inhibited from giving evidence, I note that at [42] CB 372, the Tribunal says:

    “I asked the applicant how the relationship developed and he stated it was a bit hard to give this evidence.  He stated that it was considered very shameful to talk about these things and he found it hard to talk about it.  I told him that he was not providing much information about the relationship and if he was having difficulty he could tell me about what sort of things he and K did together and how they felt about each other.”

14. Whilst this extract goes some way to supporting the applicant’s view that he was inhibited in relation to these discussions, it bears in no way upon the reason for that inhibition being anything to do with the interpreter.  It was the general inhibition that any applicant might feel in having to describe his sexual relations to a third party.  But, if a person seeks asylum on the basis of his sexual orientation, he can expect to be questioned as to its existence.  The court is not satisfied that the applicant has made out the necessary requirements to establish this claim.

15. The applicant appeared before me today.  At first, he asked for an adjournment.  I noted that originally he had been represented by a barrister.  He told me that he could not afford a barrister, and he needed time to save up enough money for a barrister to appear.  I reminded him that it was now almost a year since he had filed his application, and six months since the directions hearing at which this date was given to him.  I informed him that in those circumstances, I was unable to grant him an adjournment, as these matters must be dealt with as speedily as possible in all the circumstances.  The applicant had provided me with no indication of any ground of application that might be more successful than those already put.  And in those circumstances I was unable to see any benefit either to the applicant or the court in putting the matter off for a further period of time.

16. The applicant also made further reference to the newspaper articles.  He reminded the court that his friend had been able to obtain the newspapers quite easily in Pakistan, and that they had been provided to the Tribunal.  This argument was dealt with by Mr Pinder in his response, pointing out that these matters were all known to the Tribunal, that it has considered them and had come to the conclusion that it preferred the evidence of DFAT to the evidence of the applicant, bearing in mind the independent country information concerning the ease with which false documents could be obtained in Pakistan.

17. It follows from the above that I am unable to provide the applicant with the review he seeks.  The application must be dismissed.  The applicant must pay the respondents’ costs, which I assess are 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 Judge Raphael

Associate: 

Date:  19 December 2013