SZTYN v Minister for Immigration and Border Protection
[2016] FCA 56
•8 February 2016
FEDERAL COURT OF AUSTRALIA
SZTYN v Minister for Immigration and Border Protection [2016] FCA 56
Appeal from: SZTYN v Minister for Immigration & Anor [2015] FCCA 2286 File number: NSD 1116 of 2015 Judge: ROBERTSON J Date of judgment: 8 February 2016 Legislation: Migration Act 1958 (Cth) ss 424, 424A, 425
Federal Court Rules 2011 (Cth) r 40.02(b)
Date of hearing: 8 February 2016 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: No Catchwords Number of paragraphs: 39 Counsel for the Appellant: The Appellant appeared in person with the aid of an interpreter Solicitor for the First Respondent: Mr M Wiese of Clayton Utz Solicitor for the Second Respondent: The Second Respondent submitted save as to costs ORDERS
NSD 1116 of 2015 BETWEEN: SZTYN
Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
ROBERTSON J
DATE OF ORDER:
8 FEBRUARY 2016
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the costs of the first respondent, in the fixed amount of $3,300.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
ROBERTSON J:
Introduction
This appeal is from orders made by the Federal Circuit Court of Australia on 28 August 2015 dismissing an application to that court for judicial review of a decision of the then Refugee Review Tribunal (the Tribunal) given on 30 January 2014 affirming the decision not to grant the appellant a Protection (Class XA) visa.
The grounds of appeal before me are, as written, as follows:
1.That His Honour erred in failing to find that there had not been a breach of s 424 of the Migration Act.
2.That the judgement be set asside and sent back to the Administrative appeals Tribunal to be conidered legally.
Proceedings in the Tribunal
The facts found by the Tribunal appear to have been that the appellant was a citizen of Pakistan. He is of Pashtun ethnicity and Sunni religion from a village close to a city in Swat Valley. The appellant said his family owned land and property in Aligrama but they moved to Bahktila, about a four hour drive away, in 2008 because the situation was better there.
The issue, as identified by the Tribunal, was whether the appellant would be harmed by the Taliban on return to Pakistan because he was associated with the Awami National Party (the ANP) and a village defence committee.
The Tribunal accepted that the Taliban took control of the appellant’s village in about 2006/2007. The Tribunal accepted that the appellant’s home was destroyed by bombs sometime after May 2007 whilst he was away at sea, but said the evidence indicated that the appellant’s house was destroyed in the course of fighting between the security forces and the Taliban and was not a targeting of the appellant or his family by militants.
The Tribunal accepted that the appellant’s father and uncle may have formed a defence committee at the request of the Army in 2008 to protect the village and to provide information to the Army. The Tribunal said that the appellant’s family was only involved with the peace committee until September 2008 when they moved to Bahktila.
The Tribunal accepted that the appellant was involved with a village defence committee in 2008, but noted that his involvement was only for a month’s duration.
The Tribunal accepted that the appellant’s father and the appellant may have been threatened by militants in 2008 because of their involvement with the peace committee. Reports indicated that leaders and members of village defence committees or peace committees or lashkars, (whatever the designation) had been targeted and killed by the Taliban whilst on duty and also whilst off duty in their own houses and mosques.
The Tribunal accepted that the appellant and his fellow committee members may have been attacked by the Taliban whilst patrolling in August 2008 and that two members of the committee may have been captured and beheaded. The claim was consistent with the country information that militants had targeted defence committee leaders and members and it also used beheadings to intimidate their opponents.
The Tribunal appears to have found that the appellant was threatened, beaten, and harassed by the Taliban on several occasions during 2008. The Tribunal noted that those events occurred between March 2008 (when the appellant returned from sea) and September 2008 (when he went to Karachi and then back to sea). The Tribunal accepted that the appellant may have been harassed and beaten in 2008 by militants or villagers sympathetic to the militants’ beliefs, given the presence and influence of militants in Swat at that time.
The Tribunal appears to have found that the appellant’s father was a member of the ANP, a senior person in the village who supported ANP members, welcomed them and encouraged people to vote for the ANP.
The Tribunal appears to have found that the appellant was also an ANP member, although not a high-profile member, and that he helped when he could, for example with meetings, preparing the stage for gatherings and helping to distribute food and sugar to poor people in the village. The Tribunal appears to have accepted that the Taliban warned the appellant’s father and the appellant by telephone and through other villagers not to be involved in this work.
The Tribunal appears to have found that the appellant did not have direct involvement with the ANP after leaving Aligrama in 2008.
The Tribunal noted the appellant’s claims that he feared harm on the basis of his political opinion, his involvement with the village peace committee and his religion. He claimed that he could not return to Pakistan because he and his family were Taliban targets.
The Tribunal said the following:
22.The applicant provided two ANP membership cards. He stated that one is a permanent card and one is a temporary card. The Tribunal noted that the temporary card does not look genuine. The applicant also provided a letter from [Mr X], a former ANP member of the KPK Provincial Assembly dated 2 October 2012 stating that the applicant “is an active worker” of the ANP and that his “entire family is under severe threat and on the hit list of terrorists”. The applicant said that [Mr X] knows his father and that a friend obtained the letter from him.
23. When asked if he had any involvement with the ANP after leaving Aligrama in 2008, the applicant stated that he had involvement through his friend who is a member but no direct involvement. When the Tribunal noted that the letter from [Mr X] is not correct because the applicant has not been involved with the ANP since 2008, the applicant said that [Mr X] knew him before.
The Tribunal set out its reasons as follows:
34.The applicant’s claims of past harm relate to events in his home village of Aligrama in 2008. The applicant has not lived in Aligrama since 2008 and his family has lived in Bahktila since 2008. The Tribunal does not accept that the applicant will be targeted by the Taliban or other militant groups on return to Pakistan for the following reasons.
35.The applicant’s involvement with the peace committee in Aligrama was for a period of one month. Whilst the Tribunal accepts that he and colleagues may have been attacked on patrol in 2008, the Tribunal does not accept that the applicant’s past involvement with a village peace committee gives rise to a real chance he will be harmed now. Whilst there are reports that village and tribal elders associated with peace committees or with peace negotiations have been targeted, the applicant has not had any involvement with a peace committee since 2008, his involvement at that time was limited to one month and he has not been involved in any peace negotiations in Swat. His father, who he claims was an organiser of the peace committee in 2008, has continued to reside in Swat without suffering any harm. The Tribunal does not accept that the applicant will become involved with a peace committee on return to Pakistan. He has not indicated any intention to do so and he was not involved between November 2009 and September 2011 when he was living in Pakistan.
36.The applicant was a low level member of the ANP whose activities were limited to assisting the party in the local area and he has had no direct involvement with the ANP since 2008. Whilst the Tribunal accepts that ANP leaders, MPs and high profile members have been targeted and killed in KPK and elsewhere in Pakistan, the country information does not indicate that ordinary members may have been specifically targeted and the Tribunal does not accept that the applicant will be targeted because of his past involvement or even as a current member, particularly since the ANP has lost power in KPK. Whilst the Tribunal accepts that the Taliban has at times formulated a hit list of high profile leaders and members of the government, it does not accept that the applicant has any profile which would put him on a Taliban hit list and does not accept that he is on a hit list. The Tribunal places no weight on the letter from [Mr X] as it does not accept that the letter is a correct representation of the applicant’s circumstance: the Tribunal does not accept that the applicant is an active member of the ANP or that he is on a terrorist hit list. The Tribunal does not accept that the applicant’s father or other family members are on a terrorist hit list. The country information indicates that the Taliban had a Swat hit list of 45 political leaders, MPs, elected councillors and prominent personalities. The Tribunal does not accept that the applicant’s father or other relatives had either the position or standing that would cause them to be included in such a list. Further the applicant’s family has continued to reside in Swat without harm.
37.The applicant claims to fear harm because he is against the fundamentalist ideology of the militants. The country information indicates the Fazlullah and the majority of militants fled Swat after the Army offensive in 2009 and that, whilst there have been some targeted attacks on security forces in recent years, the Army remains in control of security, administration and reconstruction in Swat; and the Taliban has not been able to re-establish its bases in Swat and has lost popular support. In view of this dispersal of the militants, the loss of support for the militants in Swat and the improved security environment, the Tribunal does not accept that the applicant faces a real chance of being harmed because he opposes fundamentalist ideologies.
38.The Tribunal notes that the applicant is a Sunni Muslim and therefore a member of the majority religion in Pakistan and will not be targeted by religious extremists who are targeting Shia Muslims and other minatory (sic) religions.
39.The applicant’s family has lived in Bahktila for 5 years. Although his family still owns land in Aligrama, the applicant claimed that he has not returned to Aligrama for 5 years, (although his fiancée lives there), and he does not know whether the land is being farmed. In view of this, the Tribunal finds that the applicant’s home region is Bahktila. The Tribunal finds that the applicant can safely return to Bahktila. For the reasons set out above, the Tribunal is also satisfied that the applicant can safely return to Aligrama.
40.For the reasons above, the Tribunal finds that the applicant does not face a real chance of suffering serious harm, now in in (sic) 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 and, accordingly does not have a well-founded fear of persecution.
41.For the reasons set out above, the Tribunal finds that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being returned to Pakistan, there is a real risk he will suffer significant harm.
The proceedings before the Federal Circuit Court
Before the Federal Circuit Court the grounds of the application for judicial review were as follows, as written:
1.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 that I was an active member of the ANP, or that I was on the terrorist’s list.
2. The tribunal failed to consider evidence before it.
3.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 beleve select 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 judgement.
4. The Decision involved a breach of 425(1) of the migration Act.
The judge of the Federal Circuit Court dealt with these grounds in turn.
As to ground 1, the judge said the Tribunal considered the letter from Mr X, but gave it no weight because of what the Tribunal said at [22]-[23] of its reasons, which I have set out at [15] above. In those circumstances, the judge said that ground one was not made out.
As to ground 2, the judge noted that the content of this ground was developed in submissions before him. There were two classes of documents. The first were documents the appellant gave to his lawyer before the hearing before the Tribunal. The second class was documents the appellant said he sent to his lawyer after the hearing.
As to the first class of documents, the judge analysed the claim by reference to the documents in Exhibit A before him. Some of the documents in Exhibit A were expressly referred to by the Tribunal and others were not but, given their contents, the judge was not satisfied that the Tribunal did not consider evidence that it ought to have considered.
As to the second class, the appellant did not keep a copy of those documents; he did not know whether his lawyer received the documents; and the appellant did not speak with his lawyer about those documents. The judge was not satisfied that any of those documents had been presented to the Tribunal.
As to ground 3, the appellant did not make any submission to the primary judge in relation to that ground. The judge held that ground 3 did not disclose any jurisdictional error. The judge noted that the ground on which the Tribunal did not accept the appellant was an active member of the ANP was the appellant’s own evidence. Additionally, the judge held, the Tribunal was not obliged under s 425(1) of the Migration Act 1958 (Cth) to give notice to the appellant that his level of involvement with the ANP was an issue. The delegate did not accept that the appellant engaged in any political activism on behalf of the ANP and the appellant was therefore 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) to write to the appellant to seek clarification of what the Tribunal perceived to be an inconsistency in the evidence that was before it.
As to ground 4, the primary judge said that the appellant made no submission in relation to this ground, other than to say that the situation was getting worse and many people had been killed. The primary judge said that the situation in Swat was not a matter that was relevant to whether the Tribunal had made a jurisdictional error; and there was nothing on the material before the judge that suggested the Tribunal did not give the appellant the opportunity to give evidence and present arguments relating to the issues in relation to the decision under review.
Having held that none of the four grounds was made out, the judge ordered that the application be dismissed with costs.
The appeal
I have set out the grounds of appeal at [2] above. I read those grounds as raising the broad issue that the primary judge should have found that the Tribunal denied procedural fairness to the appellant, or failed to take into account relevant material.
The appellant filed no written submissions.
The Minister filed written submissions supporting the reasons of the primary judge. Looking at the terms of the notice of appeal, the Minister submitted there was no basis for any alleged error under s 424 and the appellant had not indicated what information the Tribunal should have obtained pursuant to that provision. As the Tribunal did not in fact obtain any information pursuant to s 424, obligation to have regard to such information was not enlivened.
As to any more general obligation on the Tribunal to reach its decision based upon consideration of the evidence before it, the Minister submitted that no error was apparent: the Tribunal accepted some aspects of the appellant’s claims and rejected others based upon reasoning that was open to it on the evidence, to which it referred.
The Minister submitted the primary judge was correct to dispose of the appellant’s complaint in relation to the documents he tendered, notwithstanding what the Minister identified as an immaterial factual error on the part of the primary judge at [17]-[19] of the judgment that two of the documents in Exhibit A were not reproduced in the Court Book.
The Minister submitted in relation to s 424A that it was well established that the Tribunal was not obliged to write to the appellant to seek “clarification” in relation to aspects of claims and evidence that the Tribunal may not accept as accurate. The existence of doubts in the mind of the Tribunal, perceived inconsistencies, or lack of support in the evidence for the appellant’s claims, were not “information” giving rise to an obligation under s 424A. The Minister submitted the primary judge was correct to find that the Tribunal did not breach s 424A in relation to its rejection of key aspects of the appellant’s claims. As to s 425, the Minister submitted that for the reasons the primary judge gave at [25], his Honour was correct to conclude that the Tribunal discharged its obligation to the appellant in this respect in relation to the matters raised in the appellant’s application at first instance.
In oral submissions today, the appellant did not elaborate on his grounds of appeal but merely stated that he made the appeal in order to “stay legal” in Australia.
In my opinion, no error on the part of the primary judge has been made out. As the primary judge said at [9], the Tribunal did not accept that the appellant would be targeted by the Taliban or other militant group on return to Pakistan. The Tribunal gave reasons for that conclusion. Because the Tribunal did not accept the primary facts, it did not place any weight on the letter dated 2 October 2012 from Mr X because the Tribunal found it was not “a correct representation of the applicant’s circumstance”. The Tribunal found that the appellant did 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. The Tribunal also found there were no substantial grounds for believing, as a necessary and foreseeable consequence of the appellant returning to Pakistan, there was a real risk he will suffer significant harm.
In those circumstances there was no breach of procedural fairness either at all or by failing to consider crucial evidence, in particular the letter from Mr X. There was no error in the primary judge finding that ground 1 before his Honour was not made out.
As to ground 2, there was no error in the primary judge not being satisfied that the Tribunal did not consider evidence it ought to have considered and that this ground was therefore not made out. I accept the submission on behalf of the Minister that there was an immaterial factual error in saying that two of the documents in Exhibit A were not reproduced in the Court Book. The documents in question are at pages 199-200 and 209-210 of the Appeal Book, and they were in fact reproduced in the Court Book at pages 154-155.
As to ground 3 before the primary judge, there was no error in the primary judge concluding that no jurisdictional error was disclosed and that therefore ground 3 was not made out.
As to ground 4 before the primary judge, the alleged breach of s 425(1), there was no error in the primary judge holding that this ground was not made out as there was nothing in the material before his Honour suggesting the Tribunal did not give the appellant the opportunity to give evidence or present arguments relating to the issues in the decision under review.
It follows that the only substantive ground in the notice of appeal to this Court, which I have set out at [2] above, ground 1, fails.
Conclusion
The appeal should be dismissed, with costs. The Minister filed in Court an affidavit affirmed on 2 February 2016 and relied on that affidavit in support of an application for a fixed costs order pursuant to rule 40.02(b) of the Federal Court Rules 2011 (Cth). The affidavit had, I infer, been sent to the appellant last week and, in any event, the appellant has had an opportunity to have it translated today. In the circumstances, I make a fixed costs order in the amount of $3,300. The appellant said that he would have difficulty in paying the costs but I regard that as a matter between the appellant and the first respondent rather than a reason not to make the costs order.
I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Robertson. Associate:
Dated: 8 February 2016