Szuba v Minister for Immigration

[2014] FCCA 2594

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUBA & ORS v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 2594

Catchwords:
MIGRATION – Review of Refugee Review Tribunal decision – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

First Applicant: SZUBA

Second Applicant: SZUBB

Third Applicant: SZUBC

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 689 of 2014

Judgment of: Judge Driver

Hearing date: 10 November 2014

Delivered at: Sydney

Delivered on: 10 November 2014

REPRESENTATION

The First Applicant appeared in person

Solicitors for the Respondents: Mr S Spiers of Clayton Utz

INTERLOCUTORY ORDERS

1. The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

2. The first and second applicants are to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,326.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 689 of 2014

SZUBA

First Applicant

SZUBB

Second Applicant

SZUBC

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the Refugee Review Tribunal (Tribunal).  The decision was made on 25 February 2014.  The Tribunal affirmed a decision of the delegate of the Minister not to grant the applicants’ protection visas.  The applicants are from Pakistan.  There are three applicants, who are a husband, his wife and their daughter.  They apparently have other children still living in Pakistan.

2. Relevant protection claims were made by the first applicant, the applicant father.  References in this judgment to “the applicant” are intended to be references to him.  The following statement about the applicant’s claims to protection and the decision of the Tribunal on them is derived from the Minister’s outline of written submissions filed on 3 November this year.   

3. The applicant, his wife and daughter are all Sunni Muslims from Karachi, Pakistan. They all lived together in a large house in Karachi with the applicant's parents and some of his brothers and sisters.[1]

   [1] Tribunal's decision record dated 25 February 2014 (DR) at [10].

4. Since 1993, the applicant had worked for Pakistan International Airlines. He was promoted in 2009 to the position of Officer of Engineering.[2]

   [2] DR at [12].

5. On 18 August 2012, the applicant entered Australia on a visitor visa valid until 18 November 2012. On 12 November 2012, the applicant, together with his wife and daughter, applied for protection visas.  The applicant's wife and daughter did not have any separate claims for protection and applied as members of the same family unit.[3]

   [3] DR at [2].

6. On 27 February 2013 the applicants' applications were refused by the Minister’s delegate.[4]  The applicants applied for a review of the delegate's decision on 20 March 2013.  The applicant and his wife appeared before the Tribunal to give evidence and present arguments on 6 December 2013. On 25 February 2014, the Tribunal affirmed the delegate's decision.

   [4] DR at [2].

Applicant's claims

1. The applicant claimed protection on the ground that the Taliban threatened and demanded information from him due to his work at an airport in Karachi.[5]  The material assertions made by the applicant in support of his application are as follows:

   a)late one evening in December 2011, men from the Taliban forced their way into his home. According to the applicant, four men entered the room he was in, hit him, pointed a gun at him, and demanded information from him regarding cargo and passengers on various flights. According to the applicant, these men also perused his emails on his computer, before threatening to kill him and his family if he reported the incident and was not cooperative;[6]

   b)following the incident at his house, the applicant recounted that his father called the police and reported that various items of property had been stolen from his house. According to the applicant the police then attended  his house and made a first information report (FIR) and then one week, or 10 days later, a man approached the applicant and informed him that the mosque leader wanted to speak to him.[7]  The applicant explained that he attended the mosque and was advised by the leader to comply with the Taliban's request for information and not to leave Pakistan without informing him first;[8]

   c)towards the end of March 2012 the applicant contended that some people came to his house and told him to be cooperative. On this occasion he was told to obtain access to certain areas of the airport for two members of the Taliban forthwith. The applicant told them it was impossible for him to do so, but they threatened to kill him and his family;[9]

   d)for safety, at the end of April 2012, the applicant explained that he took his wife and daughter to live with his brother, who was in the Pakistani army and lived in the military containment area.  After he was with his brother, in May 2012, the applicant recounted that he got a telephone call from a Mullah (associated with the Taliban) asking him where he had gone.  He was told to go and meet the Taliban at an area called Maleef where there was a Madrassah.[10]  The applicant explained to the Tribunal that he went to the Madrassah with his wife and daughter, and when he failed to provide the people there with any information, his daughter was taken away;[11]

   e)the applicant's family and relatives came together and went to the Madrassah where they waited while the applicant went inside and spoke to the Mullah there.  The applicant told the Mullah to return his child or he would tell his airline about their demands and threats.  At that time, the Mullah made a telephone call and his daughter was returned;[12]

   f)about 15 or 20 days later, people came to the applicant's home and told him to arrange for their men to go inside the airport as previously requested.  Some 10 days later they called the applicant again and thereafter they called every week or 10 days;[13]

   g)in July 2012, the applicant was issued an Australian visa and in early August the applicant left Pakistan with his wife and child bound for Sydney via Dubai.  The applicant explained that he subsequently returned to Pakistan a few days later because there were no available seats on a flight to Sydney from Dubai, where they were in transit.[14]

   h)on 11 or 12 August [2012], the police came to his home and detained him at a station for a few hours and accused the applicant of being uncooperative and warned that he could be locked up.[15]  

   [5] DR at [9].

   [6] DR at [14] – [15].

   [7] DR at [16].

   [8] DR at [17].

   [9] DR at [18]-[19].

   [10] DR at [20].

   [11] DR at [22].

   [12] DR at [23]-[24].

   [13] DR at [25].

   [14] DR at [26].

   [15] DR at [27].

The Tribunal's findings

1. The Tribunal found that the applicant was not a witness of truth and that his account of events was false. In coming to this conclusion the Tribunal identified a catalogue of inconsistencies in the applicant's evidence, such as: 

   a)the evidence provided by the applicant concerning the Taliban's request for information at his house in December 2011.[16] The applicant, in his initial evidence, asserted that the Taliban forced their way into his home and wanted to know if there were foreigners among the people who arrived and departed on aeroplanes, their nationality and whether they were agents.  In his written statement lodged with his protection visa application, the applicant had stated that when the Taliban came to him they wanted to know how many “USA intelligence officers had already arrived at the airport for the last couple of weeks and on which airlines they arrived”.[17]  However, when questioned about how he could speak to foreigners on aeroplanes (given the nature of his work), the applicant changed his account and said that the Taliban did not ask him to tell them if a passenger was an agent, they just wanted him to tell them the nationality of the passenger;

   b)the applicant's statement that his father had gone to the police with him to report the incident in December 2011 resulting in the FIR being filed.[18] This was inconsistent with the applicant's assertion that he had never informed his father of the Taliban threatening him which the applicant reiterated at various times in his evidence.

   [16] DR at [31]-[40].

   [17] DR at [37].

   [18] DR at [56]-[61].

2. In addition to identifying multiple inconsistencies in the applicant's evidence, the Tribunal also found many of the applicant's statements implausible, such as the following:

   a)the assertion by the applicant that he would not tell any member of his family, including his brother and father that he had been threatened by the Taliban.[19] The Tribunal held that this was implausible. In particular, the Tribunal held that it was implausible that the applicant's wife would leave Pakistan without understanding the true reason for their departure;[20]

   b)that the applicant would risk going to see the Taliban at the Madrassah in May 2012 after he and his family had gone to live with his brother who was in the army;[21] 

   c)the applicant would have taken his infant daughter to the Taliban Madrassah;[22]

   d)the applicant's account of returning to Pakistan after travelling to Dubai because there was no direct flight to Sydney. The Tribunal considered that these events indicated that there was some other reason for the applicant's travel other than a fear of harm from the Taliban.[23]

   [19] DR at [41]-[54].

   [20] DR at [52].

   [21] DR at [62]-[64].

   [22] DR at [65].

   [23] DR at [94].

3. It was on the basis of the above findings that the Tribunal held that there was no real chance that the applicant, his wife and daughter would suffer serious harm if they returned to Pakistan.[24]

   [24] DR at [139].

The present proceedings

1. These proceedings began with a show cause application filed on 19 March 2014.  There are two unparticularised grounds in that application:

   1.The Refugee Review Tribunal did not take into consideration evidence presented before the Tribunal.

   2.The Refugee Review Tribunal did not take into consideration relevant facts before the Tribunal.

2. The application is supported by a short affidavit which I received.  Paragraph 4 of that affidavit is a submission which repeats the grounds of review.  Only the Minister has otherwise taken up the opportunity I afforded the parties to provide written submissions. 

3. I have before me as evidence, in addition to the applicant’s affidavit, the court book filed on 1 May 2014 and a bundle of documents tendered by the applicant, which became exhibit A1.

4. When I invited oral submissions from the applicant, he provided particulars of his asserted grounds of review.  He claims that the Tribunal overlooked relevant material in two respects.  First, he claims that the Tribunal overlooked medical reports concerning his wife and himself.  Exhibit A1 details the medical reports that the applicant claims were overlooked.  I reject that contention.

5. First, the medical reports comprising exhibit A1 cover both the period before and a period after the Tribunal decision.  Secondly, the Tribunal, at [108] of its decision[25] specifically referred to medical reports provided by the applicant.   The Tribunal found at [113] that the applicant’s psychological problems would be resolved if he was reunited with his family in Karachi.  The Tribunal dealt with the applicant’s wife’s medical condition at [124] and [125].[26] 

   [25] Court Book (CB) 193

   [26] CB 195

6. Secondly, the applicant asserts that the Tribunal overlooked relevant material relating to the applicant’s attempted travel to Australia via Dubai.  I also reject that contention.  The applicant’s claim is identified in [26] of the Tribunal reasons.[27]  At [94] and [95][28] the Tribunal recounts discussion about the claim at the Tribunal’s hearing.  That discussion is further recounted at [97] and [98].  At [101][29], the Tribunal refers to a post-hearing submission on the issue.  At [102], the Tribunal concluded that it was not satisfied that someone in the applicant’s position and claimed circumstances would embark on travel from Pakistan in such a precarious and uncertain way as he described, and act without any apparent urgency.

   [27] CB 183

   [28] CB 191

   [29] CB 192

7. The applicant, in his oral submissions to me, referred specifically to the fact that he had provided boarding passes for his travel to Australia via Dubai to the Tribunal.  This is confirmed by the Tribunal in [117] of its reasons.[30]  The Tribunal specifically considered those documents.  At [120], the Tribunal accepted that the applicant was employed with an airline and had made travel arrangements for himself and his family via Dubai.  However, the Tribunal did not accept that those arrangements were made because of a fear of the Taliban.

   [30] CB 194

8. In his oral submissions, the applicant was also critical of the Tribunal’s rejection of his claims concerning the kidnapping of his daughter.  That issue was considered at length by the Tribunal, and the applicant’s criticism only goes to the merits of the Tribunal decision. 

9. The applicant, in his oral submissions, also referred to additional information he has obtained since the Tribunal decision concerning an attack on Karachi Airport.  He believes that material corroborates his claims.  That material might support his claims to be a refugee, but has no bearing upon this Court’s consideration of the validity of the Tribunal decision. 

10. I conclude that the applicant has failed to demonstrate an arguable case of jurisdictional error by the Tribunal. I will order that the application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

11. In consequence of the dismissal of the application, the Minister seeks an order for costs, in accordance with the scale as it applied at the time this application was made.  The applicant states that his capacity to pay costs is affected by his financial circumstances as well as his psychological condition.  I am satisfied that costs in the amount payable, pursuant to the Court scale as it applied at the time of application, have been properly and reasonably incurred on behalf of the Minister.

12. I will order that the first and second applicants are to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,326.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  18 November 2014