SZTIP v Minister for Immigration

[2015] FCCA 949

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTIP v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 949

Catchwords:
MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – no arguable case.

Legislation:

Migration Act 1958, ss.36, 424A, 474

Federal Circuit Court Rules 2001, r.44.12

Cases cited:
General Steel Industries Inc. v Commissioner for Railways (NSW) (1964) 112 CLR 125
Dey v Victorian Railways Commissioners (1949) 78 CLR 62
Agar v Hyde (2000) 201 CLR 552
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476

Applicant: SZTIP

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2361 of 2013

Judgment of: Judge Cameron

Hearing date: 13 April 2015

Date of Last Submission: 13 April 2015

Delivered at: Sydney

Delivered on: 13 April 2015

REPRESENTATION

The Applicant appeared in person by telephone

Solicitors for the Respondents: Mr L. Dennis of Sparke Helmore

ORDERS

1. The time for making the application be extended to 3 October 2013.

2. Pursuant to Rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 the application be dismissed.

3. The applicant pay the first respondent’s costs fixed in the amount of $3,326.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 2361 of 2013

SZTIP

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant is a citizen of Pakistan whose most recent arrival in Australia was on 24 February 2010.  Between 25 January 2009 and 22 December 2011 he held a student visa.  On 22 December 2011 he lodged an application for a protection visa with what is now the Department of Immigration and Border Protection (“Department”), alleging that he had been traumatised by witnessing a bomb blast and feared persecution in Pakistan because of threats against him and his family from Seppah-i-Sahaba.  On 1 August 2012 the applicant’s application was refused by a delegate of the first respondent (“Minister”).  The applicant then applied to the second respondent (“Tribunal”) for a review of that departmental decision.  He was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.

2. The matter is before the Court for consideration of the applicant’s application that the respondents should show cause why relief should not be granted to him.  The application was brought out of time but an order was made in the course of the hearing of this application that, in the interests of the administration of justice, the time for the commencement of the proceeding be extended to the date the initiating application was filed.

3. At a hearing to determine whether an order to show cause should be made, the order will not be made and, instead, the proceeding will be dismissed pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (“Rules”) if the applicant does not have an arguable case against the respondents. The authorities show that such a dismissal will not be ordered except where the lack of a cause of action is clearly demonstrated (General Steel Industries Inc. v Commissioner for Railways (NSW) (1964) 112 CLR 125 per Barwick CJ at 129), the claim is groundless (Dey v Victorian Railways Commissioners (1949) 78 CLR 62 per Dixon J at 91) or there is a high degree of certainty about the outcome (Agar v Hyde (2000) 201 CLR 552 per Gaudron, McHugh, Gummow and Hayne JJ at 575-576).

4. It should also be noted that in a proceeding for judicial review of a Tribunal decision the Court cannot reconsider the visa application underlying that decision. Its task is to determine whether the relevant Tribunal decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Migration Act 1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476. Consequently, the applicant will not have made out an arguable case unless he can demonstrate that it is at least arguable that the Tribunal’s decision is affected by jurisdictional error.

5. For the reasons which follow, the application will be dismissed.

Background facts

1. In its decision the Tribunal summarised the facts alleged in support of the applicant’s claim for a protection visa.  As summarised by the Tribunal, the applicant relevantly made the following claims:

   The applicant is a Shia Muslim.  His parents and his brother still live in Karachi.  The applicant claims to have been prominent in the Shia community in Karachi.  While in Karachi on holiday, in February 2010, the applicant claimed to have witnessed a bombing and to have been severely traumatised as a result.  He provided a document claimed to be from a medical practitioner in Karachi who treated him after the bombing.  The applicant claims that he was threated by members of Seppah-i-Sahaba who called his parents after the applicant had returned to Australia.  The applicant also claimed that his brother in Pakistan continues to receive threats.  He claimed these threats were made because the applicant has prominence in the Shia community.  In Australia, he claimed, the applicant was threatened by Seppah-i-Sahaba via Facebook.

2. In support of his application, the applicant also provided the Department with a psychologist’s report dated 12 December 2010 which stated that the results of assessments were “congruent” with the applicant’s account of psychological harm said to have occurred since the bombing.  Further, the applicant provided photographs of demonstrations in Australia and a photograph which purported to depict him in a Shia procession in Pakistan.

The Tribunal’s decision and reasons

1. After discussing the claims made by the applicant and the evidence before it, the Tribunal was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”) or s.36(2)(aa) of the Act. The Tribunal’s decision was based on the following findings and reasons:

   a)the Tribunal found that the applicant was not a reliable witness.  In this connection, it referred to a number of inconsistencies and discrepancies in the central component of his evidence which detracted from the plausibility of his claims and from his overall credibility.  In particular, the Tribunal did not accept as credible the applicant’s reasons for not applying for a protection visa until 22 December 2011, the day his student visa expired.  While the Tribunal accepted that the applicant had been diagnosed with post-traumatic stress disorder in December 2010 as a result of the bomb blast, it considered it reasonable to expect that he would have pursued his claim for protection soon after his diagnosis;

   b)while the Tribunal accepted that the applicant had participated in a procession on 5 February 2010, and that there had been two bomb blasts nearby, it did not consider him to be reliable when discussing his claim that his relatives had been killed in the blasts;

   c)on the evidence before it, the Tribunal did not accept that the applicant had the profile he had claimed for himself and did not accept that his role in the Shia community was such that it would bring him to the attention of any of the Sunni extremist groups known to operate in Pakistan.  It did not accept that his family providing donations to Shia charitable organisations, his participation in Shia religious festivals or his claimed posting of remarks on Facebook grounded his claim to such a profile;

   d)further, on the basis of the evidence before it, it did not find credible the applicant’s claim that he was threatened with being killed if he did not return to Australia in February 2010, that his family had received threats since that time or that he had received further death threats in Australia, including ones on social media sites, that he would be killed if he returned to Pakistan;

   e)while the Tribunal accepted that there was a problem of sectarian violence throughout Pakistan, given the number of Shia Muslims, it considered that the chance of any individual Shia (such as the applicant) being killed or injured in that violence was very remote.  It also did not accept that there was a real chance that the applicant would be killed or injured or otherwise persecuted in the context of sectarian attacks on Shia Muslims or that he would be prevented from practising his religion if he returned to Pakistan;

   f)it did not accept that there was a real chance that the applicant would suffer serious harm because of his actual or imputed political opinion; and

   g)while the Tribunal accepted that the applicant had adopted a western style of dress in Australia, it did not accept that he would encounter any difficulties if he returned to Karachi and continued to dress as he had in Australia.

Proceedings in this Court

1. In his amended application the applicant alleged:

   1.The Tribunal did not use the country information as specific however, the general information gathered by the Tribunal considered to weigh against my case in the final outcome.  The Tribunal used all information for matter of reasoning and evaluation of my case for the protection visa.  The Tribunal was preoccupied and did not have a fresh look.  The Tribunal also failed to consider the Amnesty International country information.

   2.The Tribunal constructively failed to exercise its jurisdiction;

   Particulars

   The applicant provided documents to the Tribunal to corroborate his claims.  The Tribunal failed to engage in an active intellectual process of these documents.  The Tribunal ultimately gave the documents no weight on the basis of credit findings.  It was an error for the Tribunal to place no weight on the documents without engaging to the contents of those documents.  It was an error for the Tribunal to assess the applicant’s credit without first assessing whether the substance of the documents corroborated his claims.

   3.The Tribunal failed to consider an integer of Applicants claim, in failing to consider whether or not a Shia live in Pakistan was at risk of harm from radical Sunnis, and not able to access effective protection whilst the Tribunal formed the view that the applicant was a credible witness.

   4.The Tribunal had no jurisdiction to make the said decision because its “reasonable satisfaction” was not arrived in accordance with the provisions of the Migration Act.

   5.The member of the Tribunal erred in that it ought to have held that on the evidence before the Tribunal it was open to the Tribunal to find that the applicant was a refugee within the meaning of the Act. In such circumstances the Tribunal erred in that:

   (a)it failed to properly apply the consideration that applicant’s for refugee status ought to be given the benefit of the doubt in circumstances where the Tribunal entertained the possibility that the applicant’s claims are plausible which was the case here.

   6.The Tribunal did not give to the applicant before the hearing the independent information that it had about Shia in Pakistan. The Tribunal used this information. This was against section 424A of the Migration Act.

   7.The Tribunal has failed to investigate applicant claims, specially the grounds of persecution in Pakistan.  Therefore, the Tribunal’s decision dated 28 August 2013 was effected by actual bias constituting judicial error.

   Therefore the applicant submit that the Tribunal failed to analyse properly the “future harm” the applicants may face if he were to be returned to Pakistan.

   Hence, due to this failure, the Tribunal had committed a serious jurisdictional error by failing to assess or carry out the ‘real chance’ test, before dismissing the applicant’s claims.

Ground 1 

1. The first ground of the application contained three allegations.  The first allegation sought to challenge the Tribunal’s use of country information.  This was no more than an invitation to reconsider the Tribunal’s findings of fact, which the Court cannot do in judicial review proceedings. 

2. The second allegation appeared to be an allegation of bias but no basis for the allegation was identified.  If it was, alternatively, an allegation that the Tribunal did not conduct a bona fide review, again the allegation was not particularised, but in any event the detailed nature of the Tribunal’s reasoning demonstrates that there was no basis for such an allegation. 

3. The fourth sentence of the first ground referred to an Amnesty International report but did not say which report or why that document should have been considered.  To the extent that an Amnesty International report was before the Tribunal, the Tribunal expressly referred to having considered it, as an analysis of para.17 and attachment B to its reasons discloses.  Those passages make it clear that the Tribunal considered the documents which were before the delegate and, as revealed by point 15 on page 3 of the delegate’s decision, an Amnesty International report was amongst that material.

Ground 2

1. The second allegation was that the Tribunal failed to consider all the evidence, in particular, documents said to have been provided to it by the applicant.  The applicant did not identify any particular document which he said had not been considered and so on the face of it there is no basis to find jurisdictional error as pleaded in the second ground. 

2. But quite separately from such issues, it is to be observed that in paras.13, 14, 15, 21, 22, 31, 42 and 47 of its reasons the Tribunal did deal with material which the applicant had supplied to it or, in the case of photographs, the activities said to be depicted.  I am not persuaded that the Tribunal failed to give proper, genuine and realistic consideration to material of potential relevance submitted by the applicant.  Further in this connection, I note that the Tribunal did not express any particular consideration of evidence concerning demonstrations in Australia.  However, as the photographs in question did not purport to depict the applicant and their relevance is elusive, no failure of duty on the part of the Tribunal is apparent in connection with them. 

Ground 3

1. The third allegation was based on a false premise, namely that the Tribunal found that the applicant was a credible witness.  Consequently, for that reason alone, the allegation must fail. 

2. However, to the extent that the applicant alleged that the Tribunal failed to consider whether or not Shias who live in Pakistan were at risk of harm from radical Sunnis and did not have access to effective protection, the summary of the Tribunal’s decision record appearing earlier in these reasons demonstrates that such an allegation must also fail on the facts, at least as far as the applicant is concerned, which was the Tribunal’s only concern.  In brief, the Tribunal recognised the problem of sectarian violence in Pakistan but found that the applicant did not face a real chance of harm on account of it.  It did not fail to consider the applicant’s claim.

Ground 4

1. The fourth allegation, unparticularised as it was, did not identify a basis to find error in the Tribunal’s lack of satisfaction that the applicant had made out his claims.  It also misconstrued the Tribunal’s decision.  The Tribunal did not relevantly state that it was reasonably satisfied that the applicant did not meet the criteria for the grant of a protection visa.  Rather, it found that it was not satisfied that he did. 

Ground 5

1. In the fifth ground of the amended application the applicant alleged that the Tribunal should have given him the benefit of the doubt but the Tribunal is under no legal obligation to do that.  The allegation did not identify any error of law which might have affected the Tribunal’s fact-finding such that its decision was affected by jurisdictional error.  Further, the assertion that the Tribunal failed to give the applicant the benefit of the doubt, as well as the remainder of this ground of the amended application, invited the Court to review the Tribunal’s finding concerning the merits of the applicant’s review which the Court is not empowered to do. 

Ground 6

1. No breach of s.424A was identified by the sixth ground of the amended application. Information of the sort referred to in this allegation is excluded by s.424A(3)(a) from the notification obligation in s.424A(1).

Ground 7

1. The seventh ground of the amended application also had three elements.  The first was an allegation of bias on the basis that the Tribunal “failed to investigate the applicant’s claims”.  The Tribunal has no general duty to undertake investigations and it was not shown that it had a particular duty to do so in this case.  If the Tribunal had no duty to undertake investigations, its failure to do so cannot support a finding of bias, whether actual or apprehended. 

2. The second element of the seventh ground was that the Tribunal failed to analyse properly the “future harm” the applicant might face upon return to Pakistan and depended on a fact that the Tribunal found did not relevantly exist.  There was no need for the Tribunal to conduct the analysis for which the applicant contended because it found that he did not face a real chance or a real risk of serious or significant harm respectively if returned to Pakistan. 

3. The third element of the allegation was an assertion that the Tribunal failed to apply the real chance test.  The Tribunal did apply the real chance and real risk tests, as paras.59 and 66 of its decision record made clear. 

Conclusion

1. For these reasons, I am not satisfied that the applicant’s application has raised an arguable case for the relief claimed. 

2. Consequently, it will be dismissed pursuant to r.44.12 of the Court’s Rules.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Associate: 

Date: 20 April 2015