SZSPA v Minister for Immigration
[2014] FCCA 2155
•19 September 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZSPA v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 2155 |
| Catchwords: MIGRATION – Visa – Protection Visa – Protection (Class XA) visa – Application for review of decision of Refugee Review Tribunal – citizen of Pakistan – claim of fear of persecution on grounds of religious belief – where applicant a Christian – claim of threats by local Muslim fanatics – ability to participate effectively in RRT hearing – credibility issues – whether RRT misconstrued the Applicant’s claim – whether RRT misconstrued what the evidence actually was – whether RRT addressed a different question to the question put to it – whether RRT constructively failed to exercise its jurisdiction – no reviewable error. |
| Legislation: Migration Act 1958 (Cth), ss.36, 476 |
| Cases cited: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389; 77 ALJR 1088 Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 SZNMJ v Minister for Immigration and Citizenship [2009] FCA 1345 SZQRW v Minister for Immigration and Citizenship [2012] FCAFC 164 VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 |
| Applicant: | SZSPA |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 272 of 2013 |
| Judgment of: | Judge Scarlett |
| Hearing date: | 30 September 2013 |
| Date of Last Submission: | 30 September 2013 |
| Delivered at: | Sydney |
| Delivered on: | 19 September 2014 |
REPRESENTATION
| Solicitor for the Applicant: | Mr Jones |
| Solicitors for the Applicant: | Parish Patience Immigration Lawyers |
| Solicitor for the Respondents: | Ms Watson |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The name of the First Respondent is amended to read Minister for Immigration and Border Protection.
The Application filed on 13 February 2013 is dismissed.
The Applicant is to pay the Respondent’s costs fixed in the sum of $6,646.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 272 of 2013
| SZSPA |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an Application for review of a decision by the Refugee Review Tribunal affirming a decision of a delegate of the Minister for Immigration and Border Protection not to grant the Applicant a Protection (Class XA) visa. The Tribunal made its decision on 9th January 2013.
By her Application, filed on 13th February 2013, the Applicant seeks orders that:
a)a writ of certiorari should issue, removing into this Court to be quashed the decision of the Second Respondent Refugee Review Tribunal;
b)a declaration that the decision is void and of no effect;
c)an order by way of mandamus that the Second Respondent reconsider the application for review in accordance with law and any directions of the Court; and
d)an order that the First Respondent, the Minister for Immigration and Border Protection, pay the Applicant’s costs.
The grounds of the Application are:
The Tribunal failed to exercise its jurisdiction by failing to consider all aspects of the Applicant’s claims.
Particulars
The Tribunal considered that it was “relevant” that a big new Catholic Church had recently been constructed in her area and that a local audio and video CD shop owner had stopped his loud music during ceremonies there. The Tribunal failed to consider the possibility that a small minority of fanatics within this otherwise harmonious community might seek to persecute the Applicant for her religious beliefs or constitute a real risk of serious harm to her.
The Application was filed on 13th February 2013.
The Minister filed a Response on 19th February 2013, saying simply:
The decision of the second respondent dated 9 January 2013 is not affected (by) jurisdictional error.
Background
The Applicant is a citizen of Pakistan. She arrived in Australia on 2nd April 2011[1]. On 26th August 2011 she applied for a Protection (Class XA) visa.
[1] Court Book 155 at paragraph [105]
In a statement attached to her Application, the Applicant claimed that she is a Pakistani Christian born in Karachi who lived with her husband, first of all at his parents’ home and then, after her siblings had all left home, moved with her husband to parents’ home to assist her aged and bedridden parents.
The Applicant stated that she worked as a teacher at a Girls Secondary School in Karachi. As well as her normal teaching duties, the Applicant conducted Bible classes during her free periods. She also gave private tuition to students after she finished school in the afternoon.
The Applicant claimed that after the US invasion of Iraq, the local Muslims would not accept the ill-treatment of prisoners at Guantanamo and considered that “the USA was involved in a religious war rather than the war on terror. The Muslims turned against the Christians in Pakistan and we had to lead our lives in fear of death in the hands of the radical Muslims in all parts of Pakistan.”[2] As a result, the Applicant said that the local Muslim radicals started to threaten Christian people and use violence towards them.
[2] Court Book page 38
In the latter part of 2007, after an incident in one of her classes where two Muslim students had assaulted some Christian students, the Applicant decided to teach the children in separate classes. Shortly after, there was a complaint made to the school that the Applicant was showing favouritism towards the Christian children.
The Applicant stated that a Muslim man named Wahid who worked at the school approached her and asked if he could rent some rooms at the rear of her parents’ home so that he could run a business from there. He advised the Muslim students to respect her and she no longer received insults. Eventually, the man asked the Applicant to work for him, which she did. After a while, however, the Applicant became concerned about unknown men in kaftans who would spend a considerable amount of time in a store room at the house. They brought police officers with them.
The man left the country and said he would make arrangements to remove his goods from the building. Around September 2010, the men who had visited the house previously returned with police officers and sought to collect the goods. However, the Applicant and her husband refused to allow them to collect the goods as she had not received any authorisation from Wahid to hand the items over to these people.
The Applicant claimed that in about October 2010 local Muslim radicals started to throw stones at the house and her husband found out that the neighbours had been told that she was involved in passing information about the Muslims and the police officers to foreign countries. When the Applicant complained to the police, she was initially detained and was then told that unless she left the local area the local Muslims would harm her. The police threatened to arrest and imprison her for working against Islam and Muslims in Pakistan by having involved herself in espionage.
The Applicant stated that she moved to the home of her husband’s parents and applied for leave from her work. She applied for a student visa to leave the country. Her husband received threats that she would be abducted and killed if she took any legal action against the Muslims or the police officers who had sought to remove Wahid’s goods from her home.
The Applicant left Pakistan for Australia. She stated that in July 2011 her husband contacted her to say that she should stay in Australia, as a group of men had entered her parents’ home looking for her, saying that Wahid, who had returned to Pakistan, had made allegations about her.
The Applicant stated:
When they left the place, my husband called me and asked me to stay in Australia permanently as I would not be able to return back to Pakistan in the future. I cannot get back to Pakistan to see my parents in the future. I fear for these Muslim criminal elements who are capable of molesting and killing Christian women for their satisfaction as they are fanatics. I have no country to return to.
The Applicant attached a number of documents to her Application, being news items about acts of violence or intimidation against Pakistani Christians.
On 11th January 2012 the Department of Immigration and Citizenship, as it then was, wrote to the Applicant, inviting her to attend an interview on 1st February 2012. The Applicant attended the interview.
On 20th February 2012, a Case Officer from the Department wrote to the Applicant, informing her that her application for a visa had been refused.
The Delegate’s Decision
In the Protection (Class XA) Decision Record that accompanied the Department’s letter to the Applicant, notifying her that her application had been refused, the Minister’s Delegate stated that she was not satisfied that the Applicant faced a real chance of Convention-related persecution in Pakistan in the reasonably foreseeable future. The Delegate found that the applicant’s fear of persecution was not well founded.[3]
[3] Court Book 107
The Delegate’s reasons for her decision are set out at pages 7 to 10 of the Decision Record, at pages 104 to 107 of the Court Book. The Delegate accepted that the Applicant is a Christian, that she experienced some discrimination while working as the only Christian teacher in a secondary school which enrolled Muslims and Christians, that she tutored both Muslim and Christian children privately at her home and that at times there was some animosity between the students which carried on into their school life, causing the Applicant some difficulty, and that she gradually decreased her private tutoring because she was able to earn money by renting her extra rooms to a businessman.
However, the Delegate found:
…given the issues discussed above – the inconsistencies and matters of implausibility in her claims; her delay in lodging a Protection visa application until four months after her arrival in Australia; and the lack of any documents or other supporting evidence – I do not accept that the applicant was ever accused of espionage or breaching the Blasphemy Laws by criminals, extremist Muslims or anyone else; that she departed Pakistan in fear of arbitrary detention or physical harm because of such accusations; or that she genuinely fears that she will be persecuted on return to that country.[4]
[4] Ibid
The Delegate went on to find:
While the country information indicates that many Christians in Pakistan do experience serious discrimination and even physical violence because of their religion, I am mindful that the level of risk of being subjected to persecutory treatment varies for each Christian in that country, according to their own particular circumstances. I am satisfied that, while the applicant was residing in Pakistan, she was able to follow her Christian faith, and was employed in the same job and resided in the same area of Karachi for many years, without facing any difficulties amounting to persecution on account of her religion or for any other reason, and that she would be able to do so again on return to that country. Consequently, I am not satisfied that the applicant faces a real chance of Convention-related persecution in Pakistan in the reasonably foreseeable future.[5]
[5] Court Book 107
Application to the Refugee Tribunal
After her application for a protection visa was refused, the Applicant applied for a review of the Delegate’s decision by the Refugee Review Tribunal. Her application was received by the Tribunal on 16th March 2012.
The Tribunal wrote to the Applicant on 8th May 2012, inviting her to attend a hearing that was scheduled to take place on 15th June 2012. The Tribunal’s letter advised that an interpreter in the Urdu language would be available.
The Applicant attended the Tribunal hearing on 15th June and gave evidence with the assistance of the Urdu interpreter. She provided character references from:
a)The Rev. Robin Barkat of the Jesus Gospel Assembly Church of Karachi, dated 10th June 2012; and
b)Winston A. Masih of the Panania Christian Church dated 13th June 2012.
The Tribunal made its decision on 9th January 2013, affirming the decision of the Minister’s Delegate not to grant the Applicant a Protection (Class XA) visa.
The Refugee Review Tribunal Decision
In its Decision Record, under the heading “Claims and Evidence”, the Tribunal noted the details of the Applicant’s claims from her Protection visa application.
Somewhat dismissively, the Tribunal stated:
As is customary with applications prepared by the applicant’s original representative, the applicant’s statement was prefaced by miscellaneous extracts from various press reports and the like not all of which were produced. The applicant’s representative also listed further pieces of miscellaneous material downloaded from the Internet (only some of which he produced) without making any attempt to relate this material to the applicant’s claims. The applicant’s representative asserted that the applicant feared being persecuted for all five Convention reasons but he did not attempt to particularise this assertion in any way.[6]
[6] Court Book 139 at paragraph [26]
It should be noted that the Applicant was not represented at the Tribunal hearing.[7]
[7] Court Book 137 paragraph [14]
The Tribunal noted that the Applicant had produced a letter dated 22nd September 2010 from a counsellor at the Service for the Treatment and Rehabilitation of Torture and Trauma Survivors (STARTTS) stating that he had conducted an assessment of the Applicant that day, noting her symptoms and expressing an opinion that the Applicant was not capable of undertaking paid employment for at least three months.
The Tribunal set out at paragraphs [28] to [56] of the Decision Record a detailed account of the Applicant’s evidence at the Departmental interview[8].
[8] Court Book 139 - 145
The Tribunal then set out at paragraphs [57] to [119] a comprehensive account of the Applicant’s evidence at the hearing[9]. In particular, the Applicant claimed to be a Catholic but had given evidence that she had worshipped at a Protestant church. There was a very big Catholic church in the area where the Applicant lived in Karachi but she had not attended that Church. The church had only recently been reconstructed, apparently without any trouble.
[9] Court Book 145-158
The Tribunal asked the Applicant about the fact that whilst the Penal Code in Palestine in Pakistan incorporated a number of Sharia law provisions, Sharia law itself had not been introduced in Pakistan and the Government of Pakistan had not ordered all Christians to convert to Islam. The Tribunal queried the Applicant’s claim that all Christians in Pakistan were being forced to convert.
The Tribunal then went on to question the Applicant at some lengths about her dealings with Mr Wahid, who had rented rooms in her house for the use of his business and had eventually employed her to work for him.
Again, the Tribunal asked the Applicant why she had considered that she had to leave Pakistan:
The applicant said that she and her husband had decided that while this thing was still hot and things had not been resolved she would go to Australia to study…The applicant said that it would be obvious when they investigated that she had never been involved in this thing. The applicant said that when the whole thing was sorted out and everything was back to normal she would return.[10]
[10] Court Book 155 at [102]
Further to this, the Tribunal asked the Applicant about her delay in applying for a protection visa:
I referred to the fact that the applicant had arrived in Australia on 2 April 2011 and I asked her why she had not applied for a protection visa when she had first come here if, as she had said, she had been concerned that these people would kill her. The applicant said that she had thought that if they investigated the matter they would find that she was innocent and that she had not done anything wrong. She said that this had been why she and her husband had decided that this matter would be resolved and she would come here to study for about a year or so…I put to the applicant that she had not come here immediately; she had come here some months after she had said these problems had arisen. The applicant said that it was very difficult to get a visa. She repeated that she had applied for a visa in November 2010.[11]
[11] Court Book 155-156 at [116]
The Tribunal also queried that whilst people who preached became a target, she did not claim that she had been preaching. The Applicant said that she had been doing similar work.
The Tribunal also expressed disbelief about the reason for the allegations being made against the Applicant:
I put to the applicant again that my problem was that there did not appear to be any reason why Mr Wahid or the Taliban or al-Qaeda or the police officers who had been involved in this illegal enterprise would have been making these allegations against her. All they had ever wanted her to do had been to keep quiet….I put to the applicant that once again this did not make any sense: if they wanted her to keep quiet about their business they would be very happy that she was in Australia. They would not want her to come back to Pakistan.
The Applicant said that these people had tortured her husband and sister to find out where she was. They were still torturing him to get her back to Pakistan so that they could apply Sharia law against her. She said that once the Taliban was after something this was the way they operated: they finished the thing off.
The Tribunal’s Findings and Reasons
The Tribunal considered the Applicant’s claims under three headings:
a)The applicant’s ability to participate effectively in the hearing before the Tribunal;
b)Credibility; and
c)Complementary protection.
First of all, the Tribunal considered whether the Applicant was able to participate effectively in the Tribunal hearing, noting the letter dated 22nd September 2010 from the counsellor from STARRTS reporting that the Applicant suffered from a range of symptoms associated with post-traumatic stress, anxiety and depression. The Tribunal stated that the letter from the counsellor was relevant in assessing the Applicant’s capability to participate in the Tribunal hearing, noting the decision of SZNMJ v Minister for Immigration and Citizenship[12].
[12] [2009] FCA 1345
The Tribunal stated that:
The counsellor stated in his letter that the applicant reported poor memory and concentration among other symptoms but the applicant had no apparent difficulty in recalling events at the hearing before me. She responded to my questions appropriately and she was able to address the issues I raised with her. Having taken into account the letter from the counsellor, I consider that the applicant was able to participate effectively in the hearing before the Tribunal.[13]
[13] Court Book 158-159 at [121]
The Tribunal made it quite clear that the Applicant’s credibility as a witness was in issue, stating:
In the present case, as I put to the applicant, I have difficulty in accepting that she is telling the truth in the claims she has made in support of her application for a protection visa.[14]
[14] Ibid 159
In particular, the Tribunal did not accept key points of the Applicant’s case, being:
a)why the Applicant would have permitted strange men in kaftans to come to the house if she and her husband believed that something illegal was going on;
b)why the Muslim men in kaftans or the police would have wanted to spread false allegations about her after they had ceased conducting illegal activities at her house;
c)why the Muslim men in kaftans and the police officers feared that she would tell other people about their activities when the only time she had said anything was when she and her husband went to the police station to complain about people throwing stones at her parents’ house;
d)the Applicant gave conflicting evidence as to what the police told her, whether it was to leave the area or just to keep quiet;
e)why the Applicant waited for almost five months after she arrived in Australia before applying for a protection visa;
f)why Mr Wahid, the Taliban, al-Qaeda or the police officers would have wanted to make false accusations against her when all they wanted was for her to keep quiet about their illegal activities; and
g)the Applicant suggested that she had been targeted because she was a Christian but she does not claim to have been involved in preaching Christianity or in trying to convert Muslims;
h)the Applicant lived in an area where a very big, new Catholic church had just been constructed; and
i)the Applicant’s account suggested that her problems stemmed from having rented rooms to Mr Wahid rather than from her fame as a Christian.
The Tribunal did not accept the Applicant’s evidence about having rented rooms to Mr Wahid who was involved in illegal activities, or that the Muslim men wearing kaftans or police officers spread false allegations about her, or that local Muslims threw stones at her house or that she was detained by the police when she and her husband went to the police station to complain.
The Tribunal did not accept that the Applicant was in danger of harm because she was a Christian, saying:
I accept that the applicant is a Christian but I do not accept that, as she claimed in the statement accompanying her original application, the police officers and ‘the local fanatic Muslims’ complained about the noise and disturbance in the neighbourhood from the church she attended nor that the church was stoned nor that the Christians were attacked. As I put to the applicant, the evidence available to me suggests that relations between Christians and Muslims in the area where she lives in Karachi are quite good. Saint Peter’s Church in Akhtar Colony reopened in November 2011 after an 11 month period of reconstruction in which everyone reportedly cooperated. It is capable of housing 5,000 worshippers, it caters for Akhtar Colony, Mehmoodabad, Kashmir Colony and Manzoor Colony and there are estimated to be 3,800 Catholic families in that area. So far from complaining about the noise from church servicers, the local audio and video CD shop owner reportedly stops his loud promotional music during ceremonies there.[15]
[15] Court Book 162-163 at [138]
In summary, the Tribunal stated:
I do not accept on the basis of the evidence before me that there is a real chance that the applicant will be prevented from practising her religion as a Christian nor that she will be otherwise persecuted for reasons of her religion as a Christian if she returns to Pakistan now or in the reasonably foreseeable future. I do not accept on the evidence before me that there is a real chance that the applicant will be persecuted for reasons of her race, religion or nationality, her real or imputed political opinion or her membership of any particular social group for the purposes of the Convention if she returns to her home in Karachi now or in the reasonably foreseeable future.[16]
[16] Ibid 163 at [141]
The Tribunal also considered the matter of complementary protection and stated that, having regard to the Tribunal’s findings of fact, the Tribunal did not accept that there were satisfactory grounds for believing that, as a necessary and foreseeable consequence of the Applicant being removed from Australia to Pakistan, there was a real risk that the Applicant would suffer significant harm as defined in subsection 36(2A) of the Migration Act 1958 (Cth).
Thus, the Tribunal was not satisfied that the Applicant was a person to whom Australia has protection obligations under the Refugees Convention and therefore did not satisfy the criteria set out in subsection 36(2) of the Act for a protection visa.
Application for Judicial Review
The Applicant submitted that the Tribunal accepted that she was a practising Christian but rejected her claim to fear harm, not on any assessment of her credibility but on the fact that a large Christian church had been reopened in her neighbourhood after a period of reconstruction. In doing so. It is submitted, the Tribunal misconstrued both the Applicant’s claim and the evidence that the Tribunal relied upon to reject her claim.
In asserting that Christians in Pakistan were frequently made the target of false blasphemy claims and that even leading Muslim politicians who opposed such claims had been murdered, the Applicant was asserting that she faced either a real chance of persecution for religious reasons or a real risk of significant harm in Pakistan, which was separate from the other claims that she made.
The Applicant’s claims required the Tribunal to consider the situation of Christians in Pakistan generally, however, it relied exclusively relating to the construction of a church in a small part of one city in Pakistan. In doing so, it is submitted, the Tribunal failed to consider the case put to it by the Applicant and thus fell into the type of jurisdictional error identified by the High Court in Dranichnikov v Minister for Immigration and Multicultural Affairs[17] at [87], in that it addressed a different question to the one put to it. In his oral submission to the Court Mr Jones also referred to the Full Court of the Federal Court in Htun v Minister for Immigration and Multicultural Affairs[18]
[17] [2003] HCA 26; (2003) 197 ALR 389; 77 ALJR 1088
[18] [2001] FCA 1802; (2001) 194 ALR 244
It was submitted that even if the evidence relied on by the Tribunal were relevant to the clam as advanced by the Applicant, the Tribunal misconceived what that evidence actually was. There were two separate reports about the opening of the Church, which can be found at pages 127 and 129 of the Court Book. Mr Jones submitted on behalf of the Applicant that the reports referred to did not support the Tribunal’s finding at paragraph [73] of page 148 of the Court Book “that everyone had cooperated during the 11-month period of construction and that the audio and video CD shop owner always stopped his loud promotional music during the ceremonies there”.
The submission is that the reports relied by the Tribunal do not support a finding that the community in which the church was being constructed was predominantly Muslim or even had a Muslim population of any significant, nor did the reports mention the religion of the shop owner. Whilst it was conceded that the Tribunal is entitled to give whatever weight it considers appropriate to a particular piece of evidence, at least within some sort of reasonable boundaries, it was submitted that the Tribunal misunderstood the nature of the evidence before it – “It treated a report about the successful renovation of a church as a report about inter-faith cooperation in Pakistan.”[19]
[19] Outline of submissions for the Applicant 27 August 2013 page 3 at [10]
Mr Jones submitted that the Tribunal’s error in this respect was similar to the error identified by the Full Federal Court in VAAD v Minister for Immigration & Multicultural & Indigenous Affairs[20], where an error of fact about a piece of evidence led to a constructive failure to exercise jurisdiction.
[20] [2005] FCAFC 117
Against this, it was submitted on behalf of the Respondent Minister that the Tribunal’s reasons do not reveal error as asserted. It is clear from the Tribunal’s reasons at [138] that it relied on information about the new Catholic Church, along with other information, to support a finding that the relationship between Christians and Muslims was quite good and the community was “harmonious”. It is also clear that the Tribunal gave consideration to the applicant’s claims that she would face persecution from the Muslim men in kaftans, police officers, the Taliban and al-Qaeda. It also gave consideration to her evidence that her house had been stoned and Christians had been attacked.
Ms Watson for the Respondent Minister submitted that the tribunal’s reasons do not reveal a failure by the Tribunal to address this aspect of the Applicant’s claims, but rather:
a)the Tribunal rejected the Applicant’s claims on the basis of an adverse credibility finding; and
b)in reaching its finding that there was no real risk that the Applicant would face serious or significant harm on the basis of her religion, the Tribunal attached greater weight to the evidence that it had regarding the community and treatment of Christians generally than the evidence of the Applicant, which it was entitled to do (see Minister for Immigration and Ethnic Affairs v Wu Shan Liang[21] at 281-282)).
[21] (1996) 185 CLR 259
It was also submitted on behalf of the Minister that, contrary to the Applicant’s submissions:
a)the Tribunal addressed the Applicant’s claim that Christians in Pakistan are vulnerable to false allegations under the blasphemy laws, but having rejected the Applicant’s claim, found that there was only a remote chance that the Applicant would fall victim to such allegations if she were to return to Pakistan; and
b)the Tribunal considered the situation of Christians generally in Pakistan with reference to the United States State Department International Freedom Report in relation to Pakistan at page 139 of the Court Book, and did not rely exclusively on evidence regarding the construction of a church.
In her oral submission to the Court, Ms Watson referred to the decision of the Full Federal Court in SZQRW v Minister for Immigration and Citizenship.[22]
[22] [2012] FCAFC 164
This was a decision where, at first instance, it was argued that the Independent Merits Reviewer had made a factual error which the Court at first instance had found to be “supplementary and effectively irrelevant to the decision-making process of the reviewer”.[23]
[23] [2012] FCAFC 164 at [54]
On appeal, the Full Court (Jacobson, Siopis and Murphy JJ) held that:
…it is apparent from the other paragraphs of her reasons, referred to at [8] above, that the reviewer understood that on the appellant’s version of events, his brother had been detained by the kidnappers for hours, not days. It is also apparent that the reviewer, fully aware of the appellant’s version of events, put to the appellant, during the interview, the same concerns as to plausibility of that version of events as find expression in relation to the reviewer’s impugned erroneous statements.
In our view, the reviewer’s error did not amount to a failure to consider a claim, or an integer of a claim made by the appellant…In other words, this was an error in fact-finding which could not have materially affected the decision nor have deprived the appellant of the possibility of a successful outcome.
The error in this case is to be distinguished from that in VAAD. In VAAD, the Tribunal’s error went directly to a core element of the claim made by the visa applicant, namely, to have been preselected as a candidate in a local provincial council election. The Full Court found that the error “had an adverse effect” on the Tribunal’s assessment of the visa applicant’s credibility, that the error “tainted” the further consideration of the evidence in the review, and “greatly influenced” the tribunal’s finding that the UNP support letter was fabricated. By contrast, the reviewer’s error in this case was relied on only in a peripheral way, did not obscure the reviewer’s understanding of the claims made by the appellant, and was an error which could have had no material influence on the reviewer’s conclusion.[24]
[24] [2012] FCAFC 164
The Minister submitted that the Tribunal was entitled to rely on the evidence about the construction of the church in the way that it did and there is no basis upon which it could be said that the Tribunal did not deal with the Applicant’s claims or that the Tribunal misunderstood the evidence before it.
Conclusions
The Tribunal’s findings fall into two separate categories, one of which the Applicant concedes cannot be susceptible to reconsideration by the Court.
First, the Applicant gave an account of having become involved with a Mr Wahid when he rented some rooms in her house for the purpose of his business. The Applicant claimed that this led to men in kaftans and police officers visiting the premises and remaining in a store room for a lengthy period of time. Things went downhill when Mr Wahid went overseas and the Applicant, on her account, found herself the subject of threats by the men in kaftans, certain police, the Taliban and al-Qaeda.
The Tribunal did not accept the Applicant’s account. It did not find her evidence on this issue to be credible. A finding on credibility is a matter of fact par excellence and is entirely a matter for the Tribunal.
The other aspect of the Applicant’s case is her claim to fear persecution on the basis that she was a Christian. The Tribunal accepted that the Applicant was a Christian but was not persuaded that she would be prevented from practising her religion as a Christian or that she would be otherwise persecuted for reasons of her religion as a Christian if she were to return to Pakistan in the reasonably foreseeable future.
In reaching this finding, the Tribunal relied on two pieces of evidence.
First, the Tribunal referred to the US State Department July-December 2010 International Religious Freedom Report in relation to Pakistan. From that document it drew the findings that Sharia law itself had not been introduced in Pakistan and the Government of Pakistan continues to call for interfaith dialogue and sectarian harmony to promote tolerance and minority rights.[25]
[25] Court Book 163 at [139]
The other evidence related to Saint Peter’s church, which had reopened after a reconstruction. The Applicant claims that the Tribunal addressed a different question to the one put to it and thereby constructively failed to exercise its jurisdiction. Further, even if the evidence relied on by the Tribunal was in fact relevant to the claim as advanced by the Applicant, the Tribunal misconstrued what that evidence actually was.
I am not persuaded that the Applicant’s submission has been made out. What the Tribunal said at [138] on page 162 of the Court Book was:
I accept that the applicant is a Christian but I do not accept that, as she claimed in the statement accompanying her original application, the police officers and ‘the local fanatic Muslims” complained about the noise and disturbance in the neighbourhood from the church she attended nor that the church was stoned nor that the Christians were attacked. As I put to the applicant, the evidence available to me suggests that relations between Christians and Muslims in the area wher4e she lives in Karachi are quite good. Saint Peter’s Church in Akhtar Colony reopened in November 2011 after an 11 month period of reconstruction in which everyone reportedly cooperated. It is capable of housing 5,000 worshippers, it caters for Akhtar Colony, Mehmoodabad, Kashmir Colony and Manzoor Colony and there are estimated to be 3,800 Catholic families in that area. So far from complaining about the noise from church services, the local audio and video CD shop owner reportedly stops his loud promotional music during ceremonies there.[26]
[26] Court Book 162-163 at [138]
The Tribunal had referred to two articles, one from the “Express Tribune” and the other from “Asia News”.
The Express Tribune article appears at pages 127 and 128 of the Court Book and says, inter alia:
All through the 11-month period of noisy construction, everyone in the neighbourhood cooperated, said Rehan, a Christian worker at the church. The audio and video CD shop owner always stops his loud promotional music during ceremonies and the entire commercial lane shut down for security on the day of the inauguration.
The church will cater to Akhtar colony, Mehmoodabad, Kashmir Colony and Manzoor Colony’s Catholic community – an estimated 3,800 families with an average of six members each.
The Asia News article says:
The Apostolic Nuncio to Pakistan Mgr. Edgar Pena Parra has blessed the newly built Church of St Peter, in Karachi, the largest Catholic building across the country. Opened on November 9 last after 11 months of work, it can accommodate up to 5 thousand faithful.
In my view, the Tribunal clearly did not misconstrue the evidence, as the summary given at paragraph [138] is an accurate summary of the above two passages. It was open to the Tribunal to draw the conclusions that it did from that evidence.
In short, there is no jurisdictional error.
The Application will be dismissed. I will hear submissions as to costs.
I certify that the preceding seventy-seven (77) paragraphs are a true copy of the reasons for judgment of Judge Scarlett
Associate:
Date: 19 September 2014
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