SZTYY v Minister for Immigration

[2015] FCCA 1257

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTYY v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1257

Catchwords:
MIGRATION – Application for review of Refugee Review Tribunal – whether it was reasonably open to the Tribunal not to accept as authentic documents on which the applicant relied – whether Tribunal otherwise considered applicant’s claims – no jurisdictional error.

Applicant: SZTYY

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 547 of 2014

Judgment of: Judge Manousaridis

Hearing date: 2 September 2014

Date of Last Submission: 26 August 2014

Delivered at: Sydney

Delivered on: 15 May 2015

REPRESENTATION

Applicant in person assisted by an interpreter.

Solicitors for the Respondents:

Ms C Hillary of

DLA Piper

ORDERS

1. The application is dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 547 of 2014

SZTYY

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant, who is a national of Pakistan, seeks judicial review of the 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. The applicant claimed he is of the Shi’a faith.[1] From around 1991 until 2005 the applicant worked in Kuwait. While in Kuwait, the applicant became an active member of the Shi’a community by participating in religious activities, such as processions and gatherings, and to “speak up and loud in favour of” his Shi’a faith. The applicant continued these activities when he moved to Dubai in 2005, where he stayed for around four and half years. Additionally, he attended “the Imam Bara (Shiat religious praying place)”.[2]

   [1] CB90-92

   [2] CB90-91

2. When the applicant returned to Pakistan in 2009, he continued these practices, but he met opposition from the local Sunni majority. He was advised not to attend Imam Bara, but the applicant continued to pray at the Imam Bara in Lahore. That resulted in the applicant being threatened and “mildly tortured”, and then beaten with the intention of being killed. In the beginning of 2012, demands were being made of the applicant to pay money if he wanted to live in Pakistan happily, freely, and according to his faith.[3]

   [3] CB91

3. The applicant sought assistance from the elders of the Shi’a community, but they could not help the applicant, and advised him to go to the police. The police also could not help the applicant and advised him to obtain private protection. Instead, “an FIR was reported to local Police against me in March 2012”, and the applicant had to apply for bail. The applicant then applied for a business visa to Australia.[4]

   [4] CB91

Tribunal’s reasons

1. The Tribunal was of the view that the application for review before it raised the questions of whether the applicant is a Shi’a and, if so, whether the applicant will suffer harm if he returns to Lahore in Pakistan.[5]

   [5] CB256, [7]

2. The Tribunal had “trouble accepting” the applicant was a Shi’a Muslim, and was not satisfied “the applicant’s level of knowledge about the Shia faith as displayed at hearing is consistent with someone who is Shia”.[6] Even if it were wrong on this, the Tribunal was not satisfied the applicant suffered any past harm. The Tribunal was not satisfied the applicant provided consistent testimony about when he was attacked, how often he was attacked, and whether the alleged charges against him had been dropped. For those reasons, the Tribunal did not accept the applicant was credible or that he had been telling the truth about the events he said occurred which the Tribunal lists in its reasons.[7]

   [6] CB256-257, [9]

   [7] CB257, [10]

3. The applicant relied on documents, including an “FIR” (i.e., first information report) and court documents.[8] The Tribunal did not accept these documents to be authentic, first, because it did not accept the applicant was credible and, second, country information showed the prevalence of document fraud in Pakistan.[9]

   [8] CB257, [10]. The FIR and other documents are at CB214-230.

   [9] CB257, [10]. The country information on which the Tribunal appears to have relied is at CB246-247.

4. Relying on country information, the Tribunal also found that the risk the applicant would be harmed as a result of sectarian violence in Lahore “is very remote”.[10] The Tribunal, therefore, was not satisfied there is a real chance he will be persecuted “in the context of sectarian or anti-Shia violence in Lahore” and would not be persecuted in any way because of his Shi’a religion or any other Convention reason.[11] The Tribunal also was not satisfied it had substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan, there is a real risk the applicant will suffer significant harm.[12]

   [10] CB257, [11]

   [11] CB257, [11]

   [12] CB258, [13]

Grounds of review

1. The applicant, who is not legally represented, relies on a number of grounds of review, although he did not make any submissions before me in support of any of those grounds.

2. Although the grounds of application contain 13 paragraphs, only five grounds can be gleaned from those paragraphs.

First ground (paragraph 1)

1. The first ground is:

   The Tribunal made a procedural mistake that the Tribunal collected information from the applicant and rejected the information without proper assessment and proof. The Tribunal simply rejected the applicant’s claim by saying that it is not satisfied. The Tribunal’s rejection is not acceptable by law.

2. This ground appears to be directed to the Tribunal’s not accepting as authentic documents the applicant had submitted to the Tribunal. These documents are a “First Information Report” which purports to record a complaint by a person of the Sunny faith against the applicant,[13] a warrant of arrest issued against the applicant,[14] and documents purporting to record the granting of “pre-arrest bail”.[15]

   [13] CB228

   [14] CB226

   [15] CB214-217

3. The Tribunal did not simply not accept these documents as authentic; it gave reasons for not accepting their authenticity. First, the Tribunal was not satisfied the applicant was a credible witness. Second, there was country information which indicated the prevalence of document fraud in Pakistan.[16] It was reasonably open to the Tribunal for the reasons it gave for it not to be satisfied the documents on which the applicant relied were authentic.

   [16] CB269, [47]. The country information on which the Tribunal relied is a “DFAT Country Information Report Pakistan 29 November 2013” which is at CB245-247.

4. The first ground, therefore, fails.

Second ground (paragraph 5)

1. The second ground is that the applicant informed the Tribunal he was taking heavy painkillers, and that his state of mind “was not good”. This ground is directed to the Tribunal’s rejecting the explanation the applicant gave in a submission he made after the hearing that his inability to tell the Tribunal how many Imams there were in the Shi’a Muslim faith, or who was the eighth Imam, or where he was buried, was due to his being confused because he was taking painkillers.[17] The Tribunal said it did not accept that “if the applicant had known these things, pain killers would have prevented him from being able to talk about them at hearing”.[18]

   [17] The finding is at CB257, [9]. The response is at CB250.

   [18] CB257, [9]

2. This ground does not indicate the Tribunal made any jurisdictional error in rejecting the applicant’s explanation. It only expresses disagreement with the Tribunal’s rejection of the applicant’s explanation.  It was reasonably open to the Tribunal not to accept the applicant’s explanation for the reasons the Tribunal gave. The second ground, therefore, also fails.

Third ground (paragraph 6)

1. The third ground is a claim that the applicant’s “state of mind was not such that I would be able to reply the answers of their questions correctly during the interview” and that in “support of this I sent two Medical Certificates from my doctors in relation to my bad health and a possible surgery in the near future”. There is no substance to this ground.

2. By letter dated 2 January 2014 the applicant’s lawyer requested the Tribunal adjourn the hearing that had been scheduled for 14 January 2014 because the applicant had severely injured his shoulder, and that the applicant was expecting “a surgery appointment”.[19] On 3 January 2014 an officer of the Tribunal informed the applicant’s lawyer by telephone that the Tribunal member decided that “unless there is information from the hospital that surgery is going ahead on 14 Jan, then, the Tribunal will not, on the basis of what he had provided, postpone the hearing”.[20] By letter dated 7 January 2014 the applicant’s lawyer confirmed the applicant would attend the hearing on 14 January 2014.[21]

   [19] CB185

   [20] CB189

   [21] CB190

3. The applicant’s lawyer did submit medical evidence; but the evidence only dealt with the injury to the applicant’s shoulder. It did not deal with the applicant’s state of mind. Consequently, there was no request for an adjournment by the applicant on the ground that his state of mind was not such as would enable him to effectively participate in the hearing. Further, the applicant has not adduced evidence of the transcript of the hearing before the Tribunal. There is nothing from the material that is before me that suggests the applicant manifested any behaviour that ought to have reasonably alerted the Tribunal that the applicant was unable to properly participate in the hearing because of his state of mind.

4. It is true that, after the hearing, the applicant submitted to the Tribunal that he became confused because of painkillers he was taking. As I have already concluded, however, for reasons that were reasonably open to it, the Tribunal rejected the applicant’s reliance on his taking pain killers to explain the applicant’s manifesting knowledge that was less than would be expected a person who was of the Shi’a faith would manifest.

5. The third ground, thus, fails.

Fourth ground (paragraph 7)

1. The fourth ground is as follows:

   . . . my mental health was not up to the mark at the time of the interview before the Tribunal. At times I even could not understand the interpreter’s translated questions properly. If the Honourable Court provides me an opportunity for allowing me some time to submit a Transcript of my interview CDs, I will do so within the specified time.

2. There is no evidence to support the matters claimed in this ground. The applicant did not put into evidence the transcript of the hearing before the Tribunal. There is otherwise nothing in the material before me that indicates there was any issue with the applicant’s not understanding the interpreter or that the applicant’s mental health was “not up to the mark”. This ground, therefore, also fails.

Fifth ground (paragraphs 8 and 9)

1. The fifth ground is a claim that the FIR the applicant provided “could be verified from the Police Department in Pakistan”. That discloses no arguable claim of jurisdictional error.

2. In paragraph 9 of the grounds of application, the applicant refers to a document which he annexed to the affidavit he filed with his application, being a copy of the document that is at page 223 of the Court Book, and submits that he is a “Proclaimed Offender”. Whatever the intended purpose of the applicant’s claiming he is a “Proclaimed Offender”, it discloses no jurisdictional error by the Tribunal.

3. The fifth ground also fails.

Conclusion and disposition

1. The applicant has not established the Tribunal made any jurisdictional error.

2. The application will be dismissed with costs.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date:  15 May 2015