SZSNA v Minister for Immigration

[2014] FCCA 812

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSNA v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 812

Catchwords:
MIGRATION – Review of Refugee Review Tribunal decision – whether Tribunal failed to consider evidence provided by applicant – whether Tribunal fell into jurisdictional error.

Legislation:  

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

Minister for Immigration and Citizenship v SZRKT [2013] FCA 317

Applicant: SZSNA

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 78 of 2013

Judgment of: Judge Raphael

Hearing date: 10 April 2014

Date of Last Submission: 10 April 2014

Delivered at: Sydney

Delivered on: 10 April 2014

REPRESENTATION

Solicitors for the Applicant: Parish Patience

Counsel for the Respondent: Mr P M Knowles

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. Name of the First Respondent be amended to ‘Minister for Immigration and Border Protection’.

2. Application dismissed.

3. Applicant to pay the First Respondent’s costs assessed in the sum of $6,646.00. 

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 78 of 2013

SZSNA

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of Pakistan who arrived in Australia on 27 July 2011 as the holder of a tourist visa. On 23 August 2011 he applied to the Department of Immigration for a protection (class XA) visa under s.65 of the Migration Act 1958 (Cth).[1]  On 27 February 2012 a delegate of the Minister refused to grant the protection visa and the applicant applied to the Refugee Review Tribunal for review of that decision.  The applicant was represented.  He appeared before the Tribunal and he provided the Tribunal with a considerable body of evidence and submissions from his migration agent.  On 21 December 2012 the Tribunal determined to affirm the decision not to grant the visa. 

   [1] The ‘Act’.

2. The applicant’s claims to be a person to whom Australia owed protection obligations centred on him having worked for his brother in a transport company that provided material for the making of a road which the Pakistan Army was building known as the Torkham Jalalabad Road in Afghanistan.  The applicant claimed that it was his responsibility to travel frequently into Afghanistan with the drivers of the vehicles and to deal with the invoices that were being presented to the supervising officer of the Pakistan Army on the road.

3. He claimed that in 2008 he had been persuaded, along with his cousin, to turn informer against the Taliban and Lashkar-e-Tayyiba or other extremist organisations that emanated from Pakistan providing information to the Afghan Army.  Although he agreed to act as such in 2008, he did not, in fact, provide any information until 2011 after his cousin had been killed.  He then provided certain information relating to an alleged suicide bombing.  The applicant claimed that very shortly after the information was provided, he was shot in his home by unknown persons who he believed were associated with the Taliban.  Following the shooting, he determined that it was unsafe for him to remain in Pakistan and he sought refuge in Australia. 

4. The Tribunal questioned the applicant upon his story and put to him certain inconsistencies which it had found between what he was telling the Tribunal and what he had told the delegate, and also between those matters and what he had said in his original application for the tourist visa. The Tribunal issued two s.424A letters to the applicant that were both responded to. In those letters, the Tribunal further set out its concerns about the applicant’s credibility.

5. In its decision the Tribunal concluded that it could not accept that the applicant was primarily working for his brother’s transport company.  This conclusion came about because the applicant had himself told the Tribunal that, in addition to working for his brother, he also had a computer company and it seems that in the application for the visitor’s visa, it was this company to which the applicant referred as his employer.  

6. The Tribunal also concluded that it did not find the applicant’s account of how he came to be an informer and how he obtained the information about the planned suicide bombing to be credible or consistent.  It made that finding [[120] CB447] and went on to explain it at some length at [[121–125] CB 447-449].  At [[129] CB449] the Tribunal opined:

   “The Tribunal accepts that the applicant was shot and that he received hospital treatment and that he made a statement to the police.  However, the Tribunal does not accept that the applicant was shot by the Taliban because he was an informer.  The Tribunal does not accept that on the evidence before it that the Taliban view the applicant as an informer or as an infidel because he was an informer.  The Tribunal also does not accept that the applicant was in hiding after February 2011, as he feared for his life because he had been an informer, because the applicant delayed in applying for a visa for Australia until May 2011.”

7. Amongst the documents which the applicant submitted to the Tribunal are a series of what are described as ‘load tallies’.  These are found at CB348 to 355.  They are documents which evidence the delivery of, in most cases, bitumen by the company associated with the brother and signed for by an army officer.  The name of the driver is given in each document and each of them are signed as being “received for conveyance” by the applicant.  The army officer signs as having received the stores at the bottom right-hand corner of the document.  These documents, which it is alleged by the applicant corroborate his story that he was frequently driving into and out of Afghanistan, were referred to by the Tribunal firstly at [[95] CB438] and then in the findings and reasons at [[117] CB446].  It is important to note that in these reasons, the Tribunal states:

   “The applicant has provided a number of documents dating from 2004, from his brother’s company […], which the applicant claims he signed, as evidence that he worked in his brother’s company.  The applicant displayed some knowledge at hearing about the operation of his brother’s company.  The Tribunal is prepared to accept that the applicant did some work in his brother’s company in an administrative capacity.  However, the Tribunal does not accept that this was the applicant’s primary employment.” 

   At [[120] CB447], the Tribunal said:

   “As the Tribunal does not accept that the applicant primarily worked for his brother’s company, the Tribunal also does not accept that the applicant was frequently travelling in and out of Afghanistan and the Tribunal does not find it credible that the applicant was approached by Afghan security forces and invited to become an informer.” 

8. On 17 January 2013 the applicant applied to this court for review of the decision of the Tribunal.  He has been ably represented by Mr Jones who provided the court with an outline of submissions.  In that outline, Mr Jones says:

   “The sole ground of the Application is that the Tribunal failed to take into account all of the evidence put forward by the Applicant in support of his claims.” 

   What Mr Jones refers to as “all of the evidence” is the load tallies which the court has discussed.  Mr Jones argues that those load tallies are corroborative of the applicant’s claim to have gone in and out of Afghanistan and hence corroborative of his story that whilst there he was induced to become an informer for the Afghan security forces.  He says that by ignoring these documents and their corroborative effect, the Tribunal has fallen into jurisdictional error of the type considered by Robertson J in Minister for Immigration and Citizenship v SZRKT [2013] FCA 317[2] and in numerous other cases where it has been found that a Tribunal has ignored the relevant evidence.

   [2] ‘SZRKT’.

9. In the court’s view, this claim cannot be made out.  Firstly, the load tally documents do not establish that the applicant went into Afghanistan at all.  They are similar to a bill of lading or other transportation document.  They are signed at the loading point and again at the receiving point.  The applicant was not a driver of the vehicle, and so his signature at the loading point cannot establish that he went with the load into Afghanistan.  Secondly, even if the applicant did go with these loads into Afghanistan, the examples that are produced are, with the exception of two, all in 2004, some four years before the applicant became an informer.  Thirdly, the Tribunal does not say that the applicant never went into Afghanistan.  It says that it could not be satisfied that he was frequently travelling in and out of Afghanistan.  These documents do not establish that he was.  Indeed, one might argue that they establish something seriously to the contrary.  Fourthly, it cannot be said that the Tribunal did not consider the documents.  It makes reference to them having been provided by the applicant and it makes reference to them in the findings and reasons that clearly indicates that they were considered.  The Tribunal accepted them as establishing that the applicant did have some connection in an administrative capacity with a company, but it did not accept that that was his primary employment.  Fifthly, bearing in mind that there is no denial by the Tribunal that the applicant had travelled into and out of Afghanistan, the Tribunal goes on to give very thorough reasons as to why it does not find his story of having turned informer credible. 

10. It is the claim that he was an informer that gives rise to his claim for protection.  It is not his claim that he was a traveller into and out of Afghanistan.  The reasons given by the Tribunal make no reference to travelling in and out of Afghanistan.  They make reference only to the plausibility of the story of the approach by the Afghan military or security forces.

11. Mr Jones relies on what fell from Robertson J at [71] in SZRKT:

    “However, in my opinion the Federal Magistrate did not err in concluding that the Tribunal had given no consideration to the Punjab University transcript when it made its adverse findings. The reasoning of the Federal Magistrate was founded on the following. First, the absence of any reference to the document in either the course of the hearing or in the reasons of the Tribunal. Second, the finding of the Tribunal was based entirely upon the Tribunal’s opinion of the intrinsic [im]plausibility of the applicant’s oral evidence. Third, the Punjab University transcript was critically relevant corroborative evidence but was not referred to by the Tribunal. Fourth, there was not a skerrick of specific evidence showing that the Tribunal had given consideration to the document. Fifth, the Federal Magistrate was not persuaded otherwise by the Tribunal’s general and formulaic statement that it had regard to the material on the Department and Tribunal files.”

12. For the sake of completion, I would note that I accept the submissions  made by Mr Knowles on behalf of the Minister that there is a substantial difference between the findings made there and the instant case.  Firstly, there is no absence of any reference to the documents which are said to be corroborative.  Secondly, the findings of the Tribunal in this case were based upon the implausibility of the applicant’s claim, and are not directly referable to the matters that the applicant claims the documents corroborate.  Third, the court cannot, for the reasons already expressed, find that those documents were critically relevant, corroborative evidence that was not referred to by the Tribunal.  They are not corroborative and they were referred to.  Fourthly, it cannot be said that there was “not a skerrick of evidence” shown that the Tribunal had given consideration to the documents.  There was substantive evidence that it had. 

13. As discussed with Mr Jones in arguendo, it is not the function of this court to reconsider the evidence and the findings of the Tribunal by way of merits review.  If there is some evidence upon which the Tribunal could come to the conclusions which it did, then whether or not the court believes that evidence is credible or otherwise is not to the point.  In this case, the Tribunal has explained in detail why it came to the conclusions it did and why it was unable to utilise the documents to corroborate the applicant’s claim, and notes the total corroborative effect on those documents which was – to the Tribunal’s thinking – only to confirm that the applicant’s story of having an association with this brother’s company and working with it in an administrative capacity was correct. 

14. It follows from the above that this application must be dismissed.  The applicant must pay the respondent’s costs in the sum of $6,646.00.  The name of the first respondent will be amended to read Minister for Immigration and Border Protection.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Raphael.

Associate: 

Date:  22 April 2014