SZTQG v Minister for Immigration

[2014] FCCA 2511

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTQG v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 2511

Catchwords:
MIGRATION – Application for review of the decision of the Refugee Review Tribunal – alleged failure by the Tribunal to consider evidence – whether Tribunal misunderstood s.36(2B) of the Migration Act 1958 (Cth) – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 476

Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407
Minister for Immigration and Citizenship & Anor v SZRKT [2013] FCA 317
Minister for Immigration and Border Protection & Anor v SZSRS [2014] FCAFC 16
SZSHV v Minister for Immigration and Border Protection [2014] FCA 253
SZATV v Minister for Immigration and Citizenship [2007] HCA 40; (2007) 233 CLR 18
SZFDV v Minister for Immigration and Citizenship and Anor [2007] HCA 41; (2007) 233 CLR 51
MZYXS  v Minister for Immigration and Citizenship [2013] FCA 614
SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774
NAXT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 279
Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51; (2010) 115 ALD 303

Applicant: SZTQG

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 3050 of 2013

Judgment of: Judge Nicholls

Hearing date: 17 October 2014

Date of Last Submission: 17 October 2014

Delivered at: Sydney

Delivered on: 31 October 2014

REPRESENTATION

Applicant: In Person

Appearing for the Respondents: Ms L Buchanan

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application made on 9 December 2013 is dismissed.

2. The applicant pay the first respondent’s costs set in the amount of $4,600.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3050 of 2013

SZTQG

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 9 December 2013 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 18 November 2013, which affirmed the decision of the Minister’s delegate not to grant a protection visa to the applicant.

Background

1. The applicant is a citizen of Pakistan who first arrived in Australia in September 2012 on a temporary business visa (the Court Book in evidence before the Court – “CB” – CB 3). He applied for a protection visa on 10 October 2012 (CB 1 to CB 26).

2. The applicant resided in Jaranwala, Pakistan (CB 4) and claimed to be the owner of a ‘retail clothes shop’ (CB 6). He claimed that he was an active member of the Muslim League-Nawaz (“MLN’) and that he worked with his local parliamentary member during elections (CB 7).

3. The applicant claimed that the local opposition party, the Pakistan People’s Party (“PPP”), had threatened to kill him (CB 7 to CB 9). The applicant stated that the local PPP attacked his business and his assets and, when he tried to stop them, the PPP injured him, and his staff (CB 8).

4. The applicant stated that he was kidnapped on 16 December 2011 by members of the PPP, where he was “…blindfolded and taken to unknown places” where he was tortured (CB 8). Further, the applicant stated that the PPP attacked him, and threatened to kill him if he reported the incident to the authorities (CB 8).

5. The applicant claimed that members of the PPP came looking for him at his house on 28 December 2011 and attempted to set his house on fire, but were unsuccessful as neighbours intervened (CB 8).

6. The applicant claimed that his life was threatened due to his political connections with the MLN and that the police were unable to provide protection, as they are corrupt and uncooperative with MLN members (CB 9 to CB 10).

The Delegate

1. The applicant had a scheduled protection visa interview on 6 February 2013 at 11am with the delegate (CB 40). The applicant did not attend and subsequently claimed he was “lost” (CB 40). The delegate informed the applicant that her decision would be based on his written application (CB 40). The delegate subsequently refused the grant of the visa on 7  February 2013 (CB 31 to CB 46).

2. Essentially, the delegate found that the applicant had not provided enough information to satisfy her that his fear was well-founded (CB 44). The delegate noted that  the applicant was granted a temporary Business visa in May 2012 but did not arrive in Australia until September 2012 and it was (CB 43):

   “…reasonable to suppose that if the applicant was in fear for his life that he would take the earliest opportunity to leave the country where he claims to fear harm…”

Tribunal

1. The applicant applied to the Tribunal for review of the delegate’s decision on 28 February 2013 (CB 47 to CB 52). He attended a hearing before the Tribunal on 14 November 2013 and was assisted by a Punjabi interpreter (CB 59 to CB 61). At the hearing he provided further documents to the Tribunal (CB 62 to CB 67). The Tribunal’s account of the hearing is set out in its decision record ([14] at CB 76 to [36] at CB 79).

2. The applicant submitted two police complaint reports, “First Information Reports” (“FIR”) ([15] at CB 76). The first FIR, dated 16 December 2011, referred to an attack on the applicant by three named persons who used an iron rod as a weapon ([16] at CB 76). The second FIR, dated 28 December 2011, referred to an incident involving the same three persons, and others, who threatened the life of the applicant and threatened to set fire to his house ([17] at CB 76).

3. The applicant gave further evidence at the hearing before the Tribunal of the two incidents in December 2011. This included information regarding the circumstances of the lodging of the two FIR reports ([21] at CB 77 to [29] at CB 78 and [31] at CB 78).

4. The Tribunal saw the initial issue in the matter before it as being whether the applicant was a credible witness ([39] at CB 80).

5. The Tribunal found that the applicant had engaged in a “degree of embellishment or misstatement” in making his claims ([39] at CB 79). In its analysis, the Tribunal noted the disparity in the description of the applicant’s employment, his account of the 16 December 2011 incident, and his account of how he obtained funds to travel to Australia ([39] at CB 79 to CB 80).

6. Specifically, the Tribunal did not accept the applicant’s claim to be an influential politician within his local area ([40] at CB 80). However, the Tribunal accepted his status as a local member or supporter of the MLN and that the applicant, for this reason, was regarded adversely by local PPP members ([40] at CB 80).

7. Further, the Tribunal generally accepted the additional evidence provided by the applicant at the hearing, in regards to the December  2011 incidents, and accepted that the applicant had a “genuine concern” for his safety and for that of his family ([40] at CB 80).

8. The Tribunal did not consider that the situation in Pakistan was the same now as it was in December 2011. The Tribunal found that the danger to the applicant was localised to the Jaranwala area, where he was known adversely by PPP supporters ([41] at CB 80 to [45] CB 81). The Tribunal was not satisfied that he would be harmed beyond this area in Pakistan, as he had no “political profile or significance” which could lead to him been targeted ([43] ‑ [44] at CB 80).

9. Further, the Tribunal was not satisfied that protection would be withheld from the applicant by the relevant authorities within Pakistan ([44] at CB 80).

10. The Tribunal found that the applicant could avoid localised harm by living away from Jaranwala. The Tribunal suggested a number of other viable cities in Pakistan it found reasonable and practical for the applicant’s relocation and work prospects ([45] at CB 80 to CB 81).

11. In finding that it was reasonable and practical for the applicant to relocate, the Tribunal noted that his family had relocated and that there was no evidence that the applicant’s family had encountered any problems ([45] at CB 80). The Tribunal rejected the applicant’s claim that he was unaware of his family’s current location ([45] at CB 80).

12. The Tribunal further noted that the applicant’s cousin, who financially supported the applicant, did not reside in Jaranwala. The Tribunal also considered that Lahore, where the applicant had previously lived for an extended period of time and did not claim to have encountered any problems, would provide greater employment prospects than could be expected in Jaranwala ([45] at CB 80 to CB 81).

13. The Tribunal also considered whether the applicant should be granted a protection visa on complementary protection grounds pursuant to s.36(2)(aa) of the Act ([46] ‑ [51] at CB 81). However, ultimately, it was not satisfied that there were substantial grounds that he would suffer significant harm if he returned to Pakistan ([47] at CB 81).

14. Having regard to all the relevant circumstances, the Tribunal affirmed the delegate’s decision not to a grant protection visa to the applicant.

Application before the Court

1. The grounds in the application  are as follows:

   “1. 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 these 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.

   2. The Tribunals decision was effected by jurisdictional error in that the Tribunal misunderstood, or failed to correctly apply the test in s36(2B)(a) of the Migration Act 1958.

   Particulars:

   Having been satisfied that there was a real risk of significant harm to the Applicant in the Jaranwala, the Tribunal was required to consider whether it was reasonable for him to relocate to an area of the country where there would not a real risk that he would suffer such harm.”

   [Errors in the original.]

Before the Court

1. At the first Court date in this matter, 5 February 2014, the applicant appeared in person. He was assisted by an interpreter in the Punjabi language. The application before the Court was expressed in general terms. I advised that the Court could not provide him with a protection visa, it could only consider whether the Tribunal’s decision revealed jurisdictional error (a “legal mistake”). I noted with the applicant the advantage of seeking legal advice and that he should consider this. The matter was nonetheless set down for a final hearing on 17 October 2014.

2. I made orders at that time giving the applicant the opportunity to file and serve an amended application and any evidence by way of affidavit. Nothing further has been filed by the applicant.

3. At the hearing the applicant appeared in person. He was assisted by an interpreter in the Punjabi language. Ms L Buchanan appeared for the first respondent.

Consideration: Submissions Before the Court

1. The applicant’s submissions before the Court proceeded on a fundamental misunderstanding of the nature of the proceedings he had instituted and the power of this Court.

2. The applicant stated that he had been denied “justice” by the Minister’s department and the Tribunal. He asked the Court to give him justice. In context, and given what followed in his submissions, it was clear that, in essence, what he meant was that he wanted the Court to grant him a protection visa.

3. It is trite to say that the Court has no power to do so. As I sought to explain to the applicant at the hearing, the issue before the Court, flowing from his application to it, is whether the Tribunal’s decision is affected by jurisdictional error such that the Court could intervene to return his matter to the Tribunal for reconsideration according to the law.

4. The applicant wanted to hand up to the Court copies of medical records and photographs which he said would show that he had recently been injured in a fire and, separately, had contracted Hepatitis C.

5. I understood that the applicant sought to do this for two reasons. First, to support his argument that it was difficult for him to return to Pakistan. Second, to explain why he had not filed further material in these proceedings, consistent with the opportunity given to him by orders of the Court made on 5 February 2014.

6. As to the first, as the applicant indicated, the matter of the fire injuries and Hepatitis C arose after the Tribunal’s decision, they are therefore not relevant to these proceedings. It appeared that this was material was offered by the applicant relevant to his claim as to why he could not return to Pakistan and to support a claim for protection in Australia rather than material arguing jurisdictional error in the Tribunal’s decision. Again, such material would not be relevant to these proceedings.

7. In relation to the second, while the applicant submitted that his recent medical difficulties had caused him hardship, he made no reference to any request for an adjournment of the final hearing. Nor did he seek to provide further material to the Court.

8. Before the Court, the applicant also raised a number of specific complaints concerning his application before the Minister’s department, and the Tribunal decision. They are as follows.

9. First, that it was “impossible” for him to relocate in Pakistan because his political opponents would “chase [him] down” wherever he went. This “objection” to relocation was raised before the Tribunal ([35] at CB 79).The Tribunal considered it at [43] of CB 80 and [45] of CB 81. The complaint before the Court therefore seeks to challenge the Tribunal’s findings and seeks impermissible merits review (Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259).

10. Second, and similarly, the applicant claimed difficulties in relocating because of his children and the disruption to their studies and examinations.

11. It is not clear whether the applicant raised this as an objection to relocation before the Tribunal, specifically in the way put to the Court. In any event, his family’s circumstances were considered by the Tribunal. The Tribunal found what they had already relocated away from the applicant’s local area in Jaranwala ([45] at CB 80). No question of jurisdictional error arises here.

12. Third, the applicant claimed that in Pakistan only those on the “lower rung” of the political system are harmed. Those at the higher level (the “leaders”) do not “suffer any loss”.

13. There is no evidence before that the Court that the applicant ever made this claim to the Tribunal in this way. In any event, as set out above, the Tribunal found that he would face harm in his local area. His lower political profile was an element in his being able to reasonably and safely relocate to avoid such harm ([43] at CB 80). This and the relevant antecedent findings were all reasonably open to the Tribunal on what was before it. In this context, the complaint appears to have been put now in answer to the Tribunal’s finding. The Tribunal’s finding was reasonably open to it (Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407 (“Durairajasingham”)). This complaint again seeks impermissible merits review.

14. Fourth, the applicant complained that there are “different languages” in each state of Pakistan and that it would be difficult to relocate because in Karachi, Punjabis (such as the applicant) are killed, and there is “a lot of terrorist activity” in Pakistan. There is no evidence before the Court that any of these matters were raised before the Tribunal. The applicant therefore seeks to challenge the finding made by the Tribunal that he could reasonably relocate. Again, he seeks impermissible merits review. In any event, Karachi was not one of the cities identified by the Tribunal as a reasonable relocation site.

15. Fifth, the applicant complained that he was denied the opportunity of an interview before the delegate. As stated above, it appears he did not attend a scheduled interview (CB 40 and CB 43). In any event, he did attend a hearing before the Tribunal. His failure to attend the interview before the delegate does not amount to jurisdictional error in the Tribunal’s decision. Noting of course, in the circumstances, that the Court has no jurisdiction to review the delegate’s decision (ss.476(2) and (4) of the Act).

Consideration: Grounds of the Application

Ground One

1. Ground one asserts that the Tribunal failed to engage in an active intellectual exercise in relation to corroborative documents he provided.  The ground does not specifically identify the documents.

2. On the evidence before the Court the only documents the applicant provided to the Tribunal in corroboration of his claims are those reproduced at CB 62 to CB 67. He gave these documents to the Tribunal at the hearing (CB 62 to CB 67 and [15] at CB 76). As stated above, both documents are said to be “First Information Reports” (“FIR”) and to be in relation to complaints made to the police in relation to the incidents of 16 December 2011 and 28 December 2011. The ground also complains that the Tribunal gave the documents no weight because of its adverse credit findings against him.

3. Both complaints must be rejected on the evidence. First, the Tribunal specifically referred to the documents in its account of what occurred at the hearing ([16] and [17] of CB 76). The Tribunal recorded the applicant’s evidence as to the provenance of the documents ([23] at CB 77 and [29] at CB 78).

4. Second, the claim that the Tribunal gave the documents “no weight” must be rejected. The Tribunal made no such finding based on any adverse credit finding or otherwise.

5. The two documents were plainly submitted to the Tribunal to support his claim that he had been the subject of attacks by his political opponents. Although the Tribunal did voice some concerns and reservations with the applicant’s evidence, it accepted that the incidents of 16 and 28 December 2011 had occurred “broadly along the lines claimed…” ([40] at CB 80). The Tribunal also found that “…the applicant has a genuine concern for the safety of himself and his family arising out of these incidents” ([40] at CB 80).

6. In this way, at least implicitly, the Tribunal did give consideration and due weight to the documents, given they related entirely to the matter of the two incidents.

7. Even if it could be argued that the Tribunal “overlooked” those two pieces of evidence, because it made no specific reference to them in its decision, given that the Tribunal accepted the applicant’s claims as to the two incidents, they are in the circumstances, not of significance in the sense explained in Minister for Immigration and Citizenship & Anor v SZRKT [2013] FCA 317 and Minister for Immigration and Border Protection & Anor v SZSRS [2014] FCAFC 16 such as to reveal jurisdictional error. The documents were given to the Tribunal in corroboration of the two incidents. They could not have produced a different outcome as to the one reached by the Tribunal in relation to the two incidents. That is, the Tribunal accepted that the incidents had occurred as the applicant broadly had claimed.

8. Although it is not clear, the last sentence of the particular to ground one may be taken as an allegation of error on the part of the Tribunal to assess the applicant’s credit without considering the “substance” of these documents.

9. Although the Tribunal accepted some of the applicant’s claims it did not accept others. The Tribunal found that the applicant had embellished or misstated some of his evidence ([39] at CB 79). This led the Tribunal to approach the applicant’s evidence with “some caution” ([39] at CB 80).

1. It was within this context that the Tribunal made findings accepting some of the applicant’s claims, for example, those relating to the incidents in 2011.  However, it was also within this context that it rejected other aspects. For example, that he was anything more than a member and supporter of the MLN ([40] at CB 80).

2. However, as the Minister submits, the Tribunals findings in relation to the credit, or otherwise, of the applicant’s claims, were all findings reasonably open to the Tribunal to make on the evidence before it and for which it gave rational explanations (SZSHV v Minister for Immigration and Border Protection [2014] FCA 253 and Durairajasingham).

3. In all, ground one is not made out.

Ground Two

1. Ground two complains that the Tribunal fell into jurisdictional error because it either misunderstood or incorrectly applied the test in s.36(2B)(a) of the Act. This related to the assessment of the criterion at s.36(2)(aa) of the Act for the grant of a protection visa. Where an applicant is found to fall within the definition of “significant harm” set out at s.36(2A) of the Act, s.36(2B) provides that “significant harm” does not rise to a real risk where it is localised and the applicant can reasonably and practicably relocate to another part of his or her home country. That sub-section must be understood in the context of s.36(2) of the Act.

2. Section 36(2B)(a) of the Act is in the following terms:

   “(2B)  However, there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that:

   it would be reasonable for the non-citizen to  relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm; ”

3. The particular to the ground appears to complain that the Tribunal did not consider the question of whether it was reasonable for the applicant to relocate to another part of Pakistan, in circumstances where it found there was a real risk of significant harm in his home town, or, that its assessment of what was reasonable, was otherwise flawed.

4. In relation to the first possibility, on a fair reading of the Tribunal’s decision record that is not made out. The Tribunal found, relevantly, that the applicant’s claims did not satisfy the criterion for the grant of the visa as set out at s 36(2)(aa) of the Act ([47] at CB 81). In this context I note that the Tribunal had earlier found, that the applicant would not face serious or significant harm “beyond his local area in Jaranwala” ([40] at CB 80)

5. Some care must be taken here. It appears that the Tribunal, in accepting that the applicant was a member of the MLN and was regarded adversely by opposition members of the PPP, including that they had attacked him, found that he had a subjective fear of harm (see the last sentence at [40] at CB 80).

6. The Tribunal, however, found that the fear was not objectively

   
   

   well‑founded because he would be able to access protection from the authorities outside his local area and that it was reasonable for him to relocate to another part of Pakistan and he could safely do so ([44] at CB 80 to [45] at CB 81).

7. The Tribunal made findings relevant to the question of relocation in support of this conclusion. The Tribunal had regard to the applicant’s family’s circumstances, and the fact that they had already relocated, the applicant’s residence in Lahore for nearly a year before coming to Australia, the financial support provided by his cousin in Gujranwala, the applicant’s employment prospects, and the relevant circumstances in Lahore and Gujranwala ([45] of CB 80 to CB 81).

8. When considering the criterion at s.36(2)(aa) of the Act, and therefore the consequence of s.36(2B)(a) of the Act, the Tribunal made express reference to these findings about state protection and relocation.

9. In relation to the second possible complaint in the particular, these findings on relocation were open to the Tribunal. It dealt with the relevant circumstances presented by the applicant’s evidence and circumstances. On the evidence, the Tribunal correctly applied the principles identified by the plurality in SZATV v Minister for Immigration and Citizenship [2007] HCA 40; (2007) 233 CLR 18 (“SZATV”) as relevant to this task (see SZATV at [24] per Gummow, Hayne and Crennan JJ).

10. Further, the Tribunal correctly applied the legal threshold identified by the High Court in the context s.36(2B)(a) of the Act (SZATV, SZFDV v Minister for Immigration and Citizenship and Anor [2007] HCA 41; (2007) 233 CLR 51 and see MZYXS v Minister for Immigration and Citizenship [2013] FCA 614).

11. I note further, that in applying its antecedent findings, additionally to the criterion at s.36(2)(aa) of the Act, it cannot be said that the Tribunal failed to apply the two separate and relevant tests at ss.36(2)(a) and (aa). It was not necessary for the Tribunal to repeat the findings under its “brief” consideration of s.36(2)(aa) of the Act, given that it made specific reference to them (SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774). Nor is such brevity on its own a basis for finding jurisdictional error (NAXT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 279 at [15] per Jacobson J and Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51; (2010) 115 ALD 303)

12. Ground two is not made out.

Conclusion

1. In all, the applicant’s grounds and complaints as put to the Court do not reveal jurisdictional error on the part of the Tribunal. Nor can I otherwise see any jurisdictional error on the part of the Tribunal. The application should be dismissed. I will make an order accordingly.

I certify that the preceding sixty-seven (67) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date: 31 October 2014