SZTYN v Minister for Immigration

[2015] FCCA 2286

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTYN v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2286

Catchwords:
MIGRATION – Application for judicial review of decision of Refugee Review Tribunal (Tribunal) – whether Tribunal considered evidence before it – whether the Tribunal was obliged to seek clarification of apparent inconsistencies in the evidence before it – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.424A, 425

Applicant: SZTYN

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 503 of 2014

Judgment of: Judge Manousaridis

Hearing date: 16 September 2014

Delivered at: Sydney

Delivered on: 28 August 2015

REPRESENTATION

The applicant appeared in person assisted by an interpreter

Solicitors for the Respondents: Mr M Wiese of Clayton Utz

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs.

3. The Administrative Appeals Tribunal be substituted for the Refugee Review Tribunal as the second respondent.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 503 of 2014

SZTYN

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant seeks judicial review of a decision of the second respondent (Tribunal) affirming the decision of a delegate of the first respondent (Minister) not to grant the applicant a Protection visa.

The applicant’s claims for protection

1. In his application for a Protection visa,[1] the applicant claimed he is a citizen of Pakistan, of Pathan ethnicity, and a Sunni Muslim. He was born and lived in a village in the Swat District. In around 2006 and 2007, while he was away from his village working on a ship, the Taliban entered and took control of the applicant’s village. The army subsequently entered the village to flush out the Taliban. In the last quarter of 2007, two bombs fell on the applicant’s family’s home, destroying the home and injuring the applicant’s brother.

   [1] CB50-52

2. The applicant returned to his village in early 2008. The applicant’s family was always close to the Awamy National Party (ANP). In 2008, at the behest of the army, the applicant’s father and uncle formed a village committee to protect the village from attacks by the Taliban. The applicant, his brothers, and cousins joined the committee. So too did one male member from each family in the village.

3. After becoming aware that the applicant’s family were involved in forming the committee, the Taliban broadcast over the radio the applicant’s father’s name as the individual who had formed the committee, and threatened the applicant’s family with death. In 2008, while playing a game similar to football, a group from the Taliban pulled the applicant by the hair, ordered him to dress and grow his hair and beard like the Taliban, and chased the applicant from where he was playing to the mosque for prayer. On another occasion, a group from the Taliban approached the applicant on the road and beat him. In the same year, another group from the Taliban came close to the applicant’s house, and told the applicant’s father that he had been instrumental in establishing the committee, and that his family were not following Islamic principles. The Taliban demanded that the applicant join them. On yet another occasion, a group from the Taliban beat the applicant because he was listening to music.

4. In 2008, while the applicant was guarding the village with other committee members, a group of Taliban attacked the committee members, and captured two of them. One week later the two captives were beheaded in an open place in the village. The Taliban had inserted in each of the victim’s mouths a note stating that anybody who dared to work against the Taliban would face the same fate. The applicant then fled his village and, ultimately, Pakistan because he feared the Taliban would target him.

5. The applicant claimed he feared harm because of his political opinion, his involvement with the village peace committee, and his religion. He claimed he cannot return to Pakistan because he and his family are Taliban targets.

6. Before the Tribunal applicant also relied on a letter from a Mr X dated 2 October 2012 in which Mr X purports to state that the applicant “is an active worker of the” ANP in Swat, and that “he and his entire family is under severe threat and on the hit list of Terrorist Groups (Talibaan) [sic]”.[2]

   [2] CB143

Tribunal’s reasons

1. The Tribunal accepted the Taliban took control of the applicant’s village in 2006 and 2007;[3] that the applicant’s family’s home was destroyed by bombs while the applicant was away at sea, although this occurred in the course of fighting between security forces and the Taliban, and was not the result of militants targeting the applicant’s family;[4] that the Pakistan Army regained control of the area after a major counter-insurgency offensive in April 2009;[5] that the applicant’s father and uncle may have formed a defence committee at the request of the Army in 2008 to protect the applicant’s village and to provide information to the Army;[6] that members of the village defence committee have been targeted and killed by the Taliban while on duty and also when not on duty;[7] that the applicant was a member of the village committee, but only for one month;[8] that the applicant and his fellow committee members may have been attacked by the Taliban while patrolling, and two of them had been kidnapped and beheaded;[9] and that the applicant may have been harassed and beaten by militants or villagers sympathetic to the militants’ beliefs.[10] The Tribunal also found that, although military authorities are in control of Swat Valley, terrorist attacks against Pakistan military operations, security personnel, and individuals deemed to be un-Islamic have continued to occur.[11] The persons attacked include ANP leaders and ANP-led provincial government members,[12] and tribal militia leaders and members.[13]

   [3] CB188, [11]

   [4] CB188, [12]

   [5] CB188, [13]

   [6] CB189, [16]

   [7] CB189, [16]

   [8] CB189, [17]

   [9] CB190, [18]

   [10] CB190, [20]

   [11] CB191, [26]

   [12] CB192, [31]

   [13] CB193, [33]

2. The Tribunal, however, did not accept the applicant will be targeted by the Taliban or other militant group on return to Pakistan.[14] First, the applicant was involved with the committee for only one month in 2008; the Tribunal did not accept that that gives rise to a real chance the applicant will be harmed.[15] Second, the applicant’s father has continued to live in Swat without suffering any harm.[16] Third, the applicant has not indicated any intention to become involved with a peace committee on his return to Pakistan.[17] Fourth, the applicant was a low level member of the ANP whose activities were limited to assisting the party in the local area, and the applicant had no direct involvement with the ANP since 2008; country information did not indicate that ordinary members of the ANP are specifically targeted by the Taliban.[18] Fifth, although the Tribunal accepted the Taliban has at times formulated a hit list of high profile leaders and members of the government, it did not accept the applicant has any profile which would put him on a Taliban hit list.[19] In that regard, the Tribunal said it did not place any weight on the letter dated 2 October 2012 from Mr X because it did not accept the letter “is a correct representation of the applicant’s circumstance”.[20] Sixth, the Tribunal did not accept the applicant’s father or other relatives are on any Taliban hit list.[21]

   [14] CB194, [34]

   [15] CB194, [35]

   [16] CB194, [35]

   [17] CB194, [35]

   [18] CB194, [36]

   [19] CB194, [36]

   [20] CB194, [36]

   [21] CB194, [36]

3. For those reasons, the Tribunal found that the applicant does not face a real chance of suffering serious harm now, or in the reasonably foreseeable future, in Pakistan because of his political opinion or his religion or his membership of a particular social group of persons involved in peace committees.[22] The Tribunal also found there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant returning to Pakistan that there is a real risk he will suffer significant harm.[23]

   [22] CB195, [40]

   [23] CB195, [41]

Grounds of review

1. In his application for review, the applicant, who is not legally represented, states four grounds of review.

Ground 1

1. The first ground is:

   That the Refugee Review Tribunal breached Natural Justice when considering my case by failing to consider crucial evidence before it. In particular the Tribunal placed no weight on the letter from [Mr X] and it did not believe I was an active member of the ANP, or that I was on the terrorist list.

2. The claim that the Tribunal did not give weight to the letter from Mr X, and did not believe the applicant was an active member of the ANP, or that the applicant was on a terrorist list does not by itself disclose any denial of natural justice or any other jurisdictional error. The Tribunal considered the letter from Mr X, but gave it no weight. The Tribunal gave it no weight because, when asked by the Tribunal if he had any involvement with the ANP after he left his village in 2008, the applicant said he had involvement through his friend but no direct involvement. In those circumstances, it was reasonably open to the Tribunal not to accept the letter from Mr X  “is a correct representation of the applicant’s circumstance”.[24] Further, given the Tribunal was not satisfied the applicant was a high level member of the ANP, that, moreover, the applicant was only involved with the ANP for one month, and that he had no direct involvement with the ANP since 2008, it was reasonably open to the Tribunal not to accept the applicant was on any terrorist list.

   [24] CB194, [36]

3. Ground 1, therefore, is not made out.

Ground 2

1. The second ground stated in the application is that the Tribunal “failed to consider evidence before it”.

2. The application does not identify the evidence the applicant claimed the Tribunal failed to consider. At the hearing before me, however, the applicant submitted there was information he had given to the lawyer who represented him before the Tribunal which the Tribunal did not consider. As I understood the applicant, there are two classes of documents. The first are documents the applicant gave to his lawyer before the hearing. These are the documents which the applicant tendered at the hearing and which I marked as “Exhibit A”. The second are documents the applicant says he sent to his lawyer after the hearing.[25] The applicant, however, did not keep a copy of those documents; he does not know whether his lawyer received the documents; and the applicant did not speak with his lawyer about those documents.[26]

   [25] At least, that is how I understood what the applicant said: see T5.25

   [26] T8.16

3. One of the documents in Exhibit A is a copy of the letter from Mr X. I have already found the Tribunal considered that letter. Next, there are four other documents in Exhibit A that are included in the Court Book. They all appear to deal with incidents the applicant said occurred in 2008. The Tribunal does not refer to these documents in its reasons for decision. I do not accept, however, that the Tribunal did not consider them. As I have already noted, the Tribunal accepted that the events the applicant claimed occurred in 2008 might have occurred. Finally there are two cards. These are not in the Court Book. One is a card titled “SECURITY PASS-VDC” which is in English and bears the applicant’s name and a photograph, presumably that of the applicant. The Tribunal refers to this document in the following passage of its reasons for decision:[27]

   The applicant stated at the hearing that he joined the peace committee in August 2008. He has provided a VDC Security card which he said the Army gave him to the army of the Frontier Corp if they came at night while he was guarding the village. The Tribunal noted that the card appears to be two pieces of paper sealed together. The applicant [said] that senior committee members had a proper card but local members had a card like this.

   [27] CB189, [15]

4. The Tribunal, therefore, was aware of the first of the two cards, and considered it.

5. The second card in Exhibit A is a card written in a foreign language. At the hearing before me, the applicant said it was his ANP membership card. In its reasons for decision, the Tribunal refers to the applicant having provided “two ANP membership cards”.[28] The Tribunal noted that the applicant said that one of the cards is a permanent card, and one is a temporary card. The Tribunal stated that “the temporary card does not look genuine”.[29] It is not clear whether the document in Exhibit A the applicant described at the hearing before me as his ANP membership is the card to which the Tribunal referred in its reasons. If it is, the Tribunal was aware of the card, and I am not satisfied that the Tribunal did not consider it. If the document in Exhibit A is not the membership card to which the Tribunal referred, I am not satisfied that it was before the Tribunal, or, if it was, the Tribunal did not consider it.

   [28] CB190, [22]

   [29] CB190, [22]

6. As for the documents the applicant says he provided to his lawyer that are not included in Exhibit A, I am not satisfied that any of those documents had been presented to the Tribunal or, if they had been presented to the Tribunal, the Tribunal did not consider them.

7. I am not satisfied the Tribunal did not consider evidence it ought to have considered. Ground 2, therefore, is not made out.

Ground 3

1. The third ground stated in the application is:

   The Tribunal accepted that I was a low level member of the ANP and seems to have believed much of what I have said, but then doesn’t believe select [sic] parts of my story, however the member did not write to me and ask me to clarify anything. The tribunal member should have sent me a letter for clarification and as such did not afford me natural justice.

2. The applicant did not make any submission to me in relation to this ground. It does not disclose any jurisdictional error.

3. The ground on which the Tribunal did not accept the applicant was an active member of the ANP was the applicant’s own evidence that he did not have any direct involvement with the ANP after 2008. The Tribunal presumably regarded the applicant’s evidence to be inconsistent with the statement contained in Mr X’s letter. Any perceptions the Tribunal had about inconsistencies in the evidence that was before it was not “information” within the meaning of s.424A of the Migration Act 1958 (Cth) (Act).[30] The Tribunal, therefore, was not obliged to comply with s.424A of the Act in relation to its perceptions of inconsistencies in the evidence before it.

   [30] SZBYR & Anor v Minister for Immigration and Citizenship & Anor (2007) 235 ALR 609; [2007] HCA 26 at [18]-[21]

4. Additionally, the Tribunal was not obliged under s.425(1) of the Act to give notice to the applicant that his level of involvement with the ANP was an issue. The delegate did not accept the applicant engaged in any political activism on behalf of the ANP.[31] The applicant, therefore, was on notice that the nature and level of his involvement with the ANP would be an issue before the Tribunal. Nor was the Tribunal obliged under s.425(1) of the Act to write to the applicant to seek clarification of what the Tribunal perceived to be an inconsistency in the evidence that was before it.

   [31] CB110

5. Ground 3, therefore, is also not made out.

Ground 4

1. The fourth ground stated in the application is that the Tribunal’s decision “involved a breach of 425(1) of” the Act. The applicant made no submission in relation to this ground, other than to say that the situation was getting worse and many people have been killed.

2. That the situation may be worse in Swat is not a matter that is relevant to whether the Tribunal made a jurisdictional error. And there is nothing in the material before me that suggests the Tribunal did not give the applicant the opportunity to give evidence and present arguments relating to the issues in relation to the decision under review. Ground 4 is not made out.

Conclusion and disposition

1. None of the grounds stated in the application has been made out. I propose, therefore, to order that the application be dismissed, and that the applicant pay the Minister’s costs.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date: 28 August 2015