SZTWQ v Minister for Immigration

[2015] FCCA 1501

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTWQ v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1501

Catchwords:
MIGRATION – Persecution – review of Refugee Review Tribunal (“Tribunal”) decision – visa – protection visa – refusal.

ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error – allegation that the Tribunal failed to give the applicant the opportunity to give evidence and present arguments regarding his fiancée’s religion – allegation that the Tribunal asked itself the wrong question regarding the applicant’s claimed persecution due to sectarian violence – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.425

Mazhar v Minister for Immigration &Multicultural Affairs (2000) 64 ALD 395
SZBEL v Minister for Immigration & Citizenship (2006) 228 CLR 153
VHAP of 2002 vMinister for Immigration & Multicultural & Indigenous Affairs (2004) 80 ALD 559

Applicant: SZTWQ

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 342 of 2014

Judgment of: Judge Smith

Hearing date: 14 April 2015

Date of Last Submission: 14 April 2015

Delivered at: Sydney

Delivered on: 5 June 2015

REPRESENTATION

Counsel for the Applicant: Mr P.W. Bodisco

Solicitor for the Applicant: Michaela Byers, Solicitor

Solicitor for the Respondents: Mr M. Wiese, Clayton Utz

ORDERS

1. The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 342 of 2014

SZTWQ

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant in these proceedings is a citizen of Pakistan who arrived in Australia on 8 March 2011 on a student visa. On 15 November 2011 he lodged an application for a protection visa on the basis that he feared harm because he wanted to marry a girl who was a Sunni Muslim rather than a Shia Muslim as he is. On 13 July 2012 a delegate of the first respondent (“Minister”) made a decision to refuse to grant the applicant a protection visa and he applied to the second respondent (“Tribunal”) for review of that decision. On 10 February 2014 the Tribunal affirmed the decision of the delegate.

2. The applicant has applied to this Court for judicial review of the Tribunal’s decision. In order to be successful the applicant must establish that the Tribunal decision was affected by jurisdictional error. For the reasons that follow he has not done so and the application must be dismissed.

Background

1. The applicant claimed that he was a member of a landlord family in Pakistan and his elders were very powerful in the village and very religious and conscious of their status. His father’s cousin was the richest person in his family and a big businessman.

2. The applicant claimed that he met a woman who was a Sunni Muslim at the end of 2008 at a university where he was doing a bachelor’s degree and where she was also studying. He claimed that he became engaged to this woman at the beginning of June 2009 and that she was now his fiancée. He claimed that his family and a local Sunni group wanted to kill him because of this engagement. The first incident occurred in June 2009 after he told his parents he wanted to marry the woman. His father’s cousin called him and asked him to meet him at his office where he asked the applicant not to marry the woman because she was not a Shia Muslim and that it would be a great sin to marry her. When he refused, the father’s cousin said that he would tell Sunni workers and they would kill him because they thought that Shias were not proper Muslims.

3. The applicant then claimed that on or around 17 or 18 August 2009 when he was going from his village, men came to his car armed with iron rods and hockey sticks and started beating him saying that he was not a Muslim and had no right to marry a Muslim girl.

4. The applicant regained consciousness in hospital where he found he was given six stitches in the back of his head and two in his eyebrow and that his leg and arm had also been injured. He went to tell the police but they did not do anything about the incident.

5. About one month after he lodged the police report, the applicant said that he left his village and went to the city where his fiancée lived and where he had studied. He also enrolled in a Master’s degree in that same month. In December 2009 the applicant claimed that he started receiving threating phone calls from the Sunni group. In February 2010, the head of his university department told the applicant that the police had come to the university looking for the applicant but he had not given the police permission to enter the grounds of the university. The applicant claimed that his father’s cousin had used his influence to bribe the police to get them to find him. The applicant decided to leave Pakistan in the middle of 2010 and was granted a student visa in February 2011 and arrived here on 7 March 2011.

6. The applicant claimed that he could not move to another city in Pakistan as he could not get a job without bribery and had insufficient money to start a business. He said that he would be killed if returned to Pakistan and that the Sunni people would find him and kill him.

7. The delegate made a decision on 13 July 2012 to refuse to grant the applicant a protection visa. While she accepted that the applicant was a Shia engaged to a woman of the Sunni sect, the delegate found that the applicant would not face a real chance of harm on return to Pakistan and that there would be state protection available to him from the Pakistani police. Further, she found that the applicant would be able to relocate and sustain a living outside his village, should he return to Pakistan.

8. The applicant applied to the Tribunal for a review of the decision and attended a hearing conducted by the Tribunal on 26 July 2013. He was represented at that hearing by a migration agent. At the conclusion of the hearing, the applicant was granted time within which to present written submissions on the issues that arose during the hearing and his agent did so. It will be necessary in due course to consider the conduct of the hearing in greater detail.

Tribunal’s decision

1. The Tribunal made its decision on 10 February 2014. The Tribunal did not accept that the applicant was telling the truth about his reasons for leaving Pakistan. It did not accept that he became engaged to a Sunni Muslim girl or that he was threatened or attacked by his father’s cousin or by a Sunni group because of this engagement. As the Tribunal rejected the essential premise of the applicant’s claims, it found that the applicant did not fear persecution for reasons of his engagement to a Sunni Muslim girl or for reasons of his membership of a particular social group. It also found that there was no real chance that he would face discrimination in Pakistan for reasons of his religion as a Shia Muslim and, while sectarian violence continued to result in hundreds of deaths in Pakistan each year there was only a remote chance that he would fall victim to such violence if he returned to Pakistan at the time of the Tribunal’s decision or in the reasonably foreseeable future.

2. For those reasons, the Tribunal concluded that the applicant did not satisfy the criteria for the grant of a protection visa and so affirmed the decision of the delegate.

Consideration

1. The amended application raises two grounds. The first is that the Tribunal failed to apply s.425 of the Act in that it didn’t give the applicant the opportunity to give evidence and present arguments relating to his fiancée’s religion. The second ground is that the Tribunal asked itself the wrong question because it reasoned that there was no real chance of persecution in connection with sectarian violence in light of the fact that Shia Muslims constituted approximately 23% of the population.

Ground 1

1. The applicant argues that, while the Tribunal did question the applicant on inconsistencies in respect of his account of the relationship with his fiancée, the questions explicitly turned on the acceptance of the engagement to a Sunni Muslim. In light of that, he argues that he was denied the opportunity to present arguments on the issues that were dispositive of the review.

2. Subject to irrelevant exceptions, s.425 of the Act requires the Tribunal “to invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review”. It is well-established that this requires more than a simple invitation and that the obligation extends to affording an opportunity to be heard: see for example, Mazhar v Minister for Immigration & Multicultural Affairs (2000) 64 ALD 395 at [31].

3. The leading case on the content of the obligation under s.425 is SZBEL v Minister for Immigration & Citizenship (2006) 228 CLR 152. There, the Court said at 162-163:

   [33]The Act defines the nature of the opportunity to be heard that is to be given to an applicant for review by the Tribunal. The applicant is to be invited “to give evidence and present arguments relating to the issues arising in relation to the decision under review” (s 425(1) (emphasis added)). The reference to “the issues arising in relation to the decision under review” is important.

   [34]Those issues will not be sufficiently identified in every case by describing them simply as whether the applicant is entitled to a protection visa. The statutory language “arising in relation to the decision under review” is more particular. The issues arising in relation to a decision under review are to be identified having regard not only to the fact that the Tribunal may exercise (s 415) all the powers and discretions conferred by the Act on the original decision-maker (here, the Minister’s delegate), but also to the fact that the Tribunal is to review that particular decision, for which the decision-maker will have given reasons.

   [35]The Tribunal is not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the Tribunal. But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are “the issues arising in relation to the decision under review”. That is why the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision. And unless some other additional issues are identified by the Tribunal (as they may be), it would ordinarily follow that, on review by the Tribunal, the issues arising in relation to the decision under review would be those which the original decision-maker identified as determinative against the applicant.

   [36]It is also important to recognise that the invitation to an applicant to appear before the Tribunal to give evidence and make submissions is an invitation that need not be extended if the Tribunal considers that it should decide the review in the applicant’s favour. Ordinarily then, as was the case here, the Tribunal will begin its interview of an applicant who has accepted the Tribunal’s invitation to appear, knowing that it is not persuaded by the material already before it to decide the review in the applicant’s favour. That lack of persuasion may be based on particular questions the Tribunal has about specific aspects of the material already before it; it may be based on nothing more particular than a general unease about the veracity of what is revealed in that material. But unless the Tribunal tells the applicant something different, the applicant would be entitled to assume that the reasons given by the delegate for refusing to grant the application will identify the issues that arise in relation to that decision.

4. In this case, the delegate accepted that the applicant was a Shia who was engaged to a woman of the Sunni sect. On that basis, subject to the way in which the Tribunal conducted its review, the applicant was entitled to assume that matter was not an issue on the review.

5. In support of this ground, the applicant relies on the transcript of the Tribunal hearing, annexed to the affidavit of Jacqueline Zinck, affirmed 12 February 2015.

6. At the hearing, the Tribunal asked a number of questions of the applicant seeking clarification of his evidence in respect of a number of aspects of his claims. Pages 6 – 8 of the transcript includes a passage in which the Tribunal asks the applicant about when he was engaged:

   [Tribunal]:Now you say that you got engaged in June 2009.

   [Applicant]:  In September, I just clarify by myself in front of my family that I am going to marry a girl.

   …

   [Tribunal]:No you said previously that you got engaged in June and that you didn’t tell your family until after you got engaged.

   [Applicant]:  I engaged in 2009 as I studied in my old story. I just clarify in front of my family in June 2009 that I am going to marry a girl and tell all the story about the girl.

   …

   [Tribunal]:Well that doesn’t make a great deal of sense, does it? You said they wanted to kill you because you got engaged?

   …

   [Tribunal]:Yes but they’re reacting to something that hasn’t even happened yet according to you now.

7. Later, the Tribunal asked the applicant about a number of the documents that he had produced in order to corroborate his claims (at transcript pp.27 – 28):

   [Tribunal]:I don’t think it’s a printing mistake Mr [applicant]. It’s completely different from your story. …

   …

   [Tribunal]:No, you’ve produced these documents to corroborate your evidence and they don’t support the story you’re telling.

8. The Tribunal then returned to the issue of when the applicant was engaged (at transcript pp.28 – 29):

   [Tribunal]:As we’ve discussed today previously, you say that you engaged in June 2009. Today you said that you got engaged in September 2009.

   …

   [Tribunal]: Yes, but you said that you got engaged in June. As I say, in the Departmental interview you didn’t tell your family about the relationship until after you got engaged in June. Now you’re saying you told them before you got engaged. Your inconsistencies in your evidence suggest that you’re not telling the truth. You want to say anything more there?

9. Counsel for the applicant, Mr Bodisco, argued that these passages only raised issues about whether there was an engagement and relied on the fact that the Tribunal ultimately accepted that the applicant was engaged in support of the fact that this was insufficient to put the applicant on notice that there was also an issue as to whether the woman to whom the applicant was engaged was a Sunni Muslim. Even if that submission were correct, which I do not accept, the following passages must be taken into account. Immediately after the last quoted statement, the Tribunal said (at transcript p.29):

   Now, even if I were to accept that you became engaged to a Sunni Muslim girl. The information available to me says that marriage between Sunni and Shia Muslims are less problematic in Pakistan …

10. That question made it abundantly clear that both the fact of the engagement and the religion of the applicant’s fiancée were an issue on the review. In my view, that only became clearer as the hearing progressed. After raising further difficulties that it was having with the applicant’s claims, the Tribunal said (at transcript p.31):

    What I suggest Mr [applicant] is that having failed in your studies you cast around to find some reason to stay in Australia because you don’t want to go back to Pakistan having failed in your studies.

11. Later, when dealing with submissions made by the applicant’s representative, the Tribunal said (at transcript pp.32 – 33):

    … Those appear to be different ways of expressing your claim that you fear being persecuted because you have become engaged with a Sunni Muslim girl and for the reasons that we have discussed I can’t accept that there is a real chance that you will be persecuted for an Convention reason in that context if you return to Pakistan.

12. The “reasons” referred to by the Tribunal in that passage must include the fact that the Tribunal did not accept the claim that the applicant was engaged to a Sunni Muslim girl. Not only was that said directly by the Tribunal, but it was a necessary inference from the Tribunal’s questions about each aspect of that claim and the applicant’s credibility. The applicant’s migration agent was aware that the applicant’s credit was generally in issue. In a letter to the Tribunal after the hearing, the agent wrote:

    It is our humble contention that the evidence given by the applicant has been consistent with his statement given along with his application, and his testimony at the hearings before the Delegate and before your good self. Further he has been truthful and his evidence is plausible.

13. If the agent had understood that the issues were confined to those which arose from the delegate’s decision, it would have been unnecessary to write anything about the applicant’s credit.

14. The applicant argued that the balance of the agent’s letter addressed only the police report and the time and fact of the engagement and not the religion of the fiancée. That may be, but that does not mean either that they were not aware that there were other issues or, more importantly, that they were not on notice that there were other issues.

15. At the very least, the applicant was on notice that his entire credit was on issue. The applicant’s submission that that is insufficient is inconsistent with authority.

16. In SZBEL, the Court, at 165-166, made three general points concerning the operation of s.425. The second of these was:

    [47]First, there may well be cases, perhaps many cases, where either the delegate’s decision, or the Tribunal’s statements or questions during a hearing, sufficiently indicate to an applicant that everything he or she says in support of the application is in issue. That indication may be given in many ways. It is not necessary (and often would be inappropriate) for the Tribunal to put to an applicant, in so many words, that he or she is lying, that he or she may not be accepted as a witness of truth, or that he or she may be thought to be embellishing the account that is given of certain events. The proceedings are not adversarial and the Tribunal is not, and is not to adopt the position of, a contradictor. But where, as here, there are specific aspects of an applicant’s account, that the Tribunal considers may be important to the decision and may be open to doubt, the Tribunal must at least ask the applicant to expand upon those aspects of the account and ask the applicant to explain why the account should be accepted.

17. The question of whether the Tribunal has complied with s.425 is, much like any question of procedural fairness, not to be approached by way of syllogistic analysis: see VHAP of 2002 vMinister for Immigration & Multicultural & Indigenous Affairs (2004) 80 ALD 559 at [27]-[28]. Rather, it is a question of fairness. The applicant here was, in my view, on notice that everything he said was in issue and was afforded the opportunity to give evidence and make submissions about all of his claims and evidence. For that reason there was no breach of s.425 of the Act. The first ground is rejected.

Ground 2

1. This ground focuses upon the following passage in the Tribunal’s reasons at [49]:

   As I indicated to [the applicant], I accept that sectarian violence continued to result in hundreds of deaths in Pakistan each year. As I put to him, however, Shia Muslims constitute approximately 23 per cent of the population of 190 million or 43 million and I consider there is only a remote chance that he will fall victim to sectarian violence if he returns to Pakistan now or in the reasonably foreseeable future. …

1. The applicant argues that the difficulty with this reason is that it assumes that the 23% of the victims of sectarian violence are Shia Muslim. Further, he argues that there is no evidence for the proposition and that one might assume that members of persecuted minority religious groups might make up a larger percentage of the victims of sectarian violence than their representation in the broader population and that the failure in the reasoning to take into account other factors such as geographical influences resulted in Tribunal asking itself the wrong question.

2. This argument reveals a misunderstanding not only of the Tribunal’s reasoning but also what it means to “ask the wrong question”. In the latter respect, it may well be that the Tribunal engaged in some illogical reasoning but that does not mean that it failed to answer the question posed by the Act, namely whether the applicant met the criteria for the grant of a protection visa and, in particular, whether the the applicant had a well-founded fear of persecution for a Convention reason. In any event, as the Minister submits the critical error in this ground is that it is based upon a misunderstanding of the Tribunal’s reasoning. I accept the submission by the Minister that at [49] and [52] of its statement of reasons, the Tribunal was simply saying the following;

   (a)there is continuing sectarian violence in Pakistan resulting in hundreds of deaths annually, including deaths of Shia Muslims;

   (b)the population of Pakistan is 190 million, of whom 23% are Shia Muslim;

   (c)therefore, there are 43 million Shia Muslims in Pakistan;

   (d)therefore as one of 43 million Shia Muslims in Pakistan there was not a real chance or there was only a remote chance that the Applicant would fall victim to sectarian violence directed against Shia Muslims in Pakistan if he returned there.

3. Simply put, the Tribunal did not as any part of its reasoning, find that only 23% of victims of sectarian violence in Pakistan were Shia Muslims and that that had any bearing upon the prospects of the applicant being harmed in such violence.

4. The applicant also argued as part of this ground that the Tribunal was required to have regard to other issues in order to resolve the question of the risk of harm as a result of sectarian violence. Those issues included the location of the violence, and the strength and willingness of the police force to prevent it. He argued that it was not rational simply to approach the matter as a matter of mathematics. I disagree. If the evidence had revealed that the applicant himself was at a particular risk of sectarian violence because of where he chose to live, what he did, how he dressed or any other matter, it would have been incumbent on the Tribunal to deal with those matters. However, the evidence about sectarian violence was all at a very general level and there was nothing in it to indicate that anyone with the applicant’s characteristics or the applicant himself would stand out for special attention in such violence. Indeed, the country information relied on by the applicant before the Tribunal specifically referred to the proportion of the population represented by Shia Muslims. Against that background, the fact that the applicant was just one of 43 million potential victims of sectarian violence was logically probative of the Tribunal’s finding that there was only a remote chance that he would be harmed as a result of that violence.

5. For those reasons this ground is rejected.

Conclusion

1. There is no jurisdictional error in the Tribunal’s decision and the application is dismissed with costs.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge Smith

Associate: 

Date: 5 June 2015