SZUGL v Minister for Immigration

[2015] FCCA 565

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUGL v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 565

Catchwords:
MIGRATION – Application seeking review of decision of Refugee Review Tribunal to refuse to grant applicant a Protection (Class XA) visa – no reviewable error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa)

Dranichnikov v Minister for Immigration and Multicultural Affairs(2003) 197 ALR 389
Htun v Minister for Immigration and Multicultural Affairs(2001) 194 ALR 244
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10

Applicant: SZUGL

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1100 of 2014

Judgment of: Judge Lloyd-Jones

Hearing date: 28 January 2015

Delivered at: Sydney

Delivered on: 24 March 2015

REPRESENTATION

The Applicant: The Applicant appeared in person with an Urdu interpreter.

Solicitor for the First Respondent: Ms A Carr of DLA Piper

The Second Respondent: The Second Respondent filed a submitting notice.

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent’s costs and disbursements of and incidental to the application.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1100 of 2014

SZUGL

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application under the Migration Act 1958 (Cth) (the “Migration Act”) seeking judicial review in respect of a decision of the Refugee Review Tribunal (the “Tribunal”), being RRT Case Number 1311760, a decision of Tribunal Member A. Cranston dated 31 March 2014, affirming the decision of a delegate of the Minister to refuse to grant the applicant a Protection (Class XA) visa.

2. The solicitors for the first respondent, the Minister for Immigration & Citizenship (the “Minister”) filed a folder which was indexed, labelled and paginated, containing all documents which may be relevant to the hearing. This volume of material provided has been identified as the Court Book (“CB”) and marked as Exhibit “A”.    

3. At the First Court Date directions hearing the applicant was granted leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any supporting affidavit material.  The applicant elected not to file an amended application or any affidavit evidence.

Background

1. In setting out the following background material I have quoted directly from the Court Book and submissions prepared by the Minister. Where this information is extracted from the Court Book, each item contains a reference for that material (CB).  I have not made further attribution as this would make the summary unwieldy.

2. The applicant is a male citizen of Pakistan (CB 33).  The applicant arrived in Australia on 20 November 2012, as the holder of a Short Stay Business (Class UC) Subclass 456 visa (CB 35).

3. The applicant applied for a Protection (Class XA) visa on 11 December 2012 (CB 1-28).  The applicant was assisted in making that application by a registered migration agent (CB 29-31).

4. The applicant claimed that he was Shia Muslim.  The applicant claimed that, on 26 November 1999, after visiting a local mosque, five Islamic fundamentalists from the Sipah-e-Saba shot dead his father.  The applicant claimed that due to his father's profile as a Shia preacher, the family encountered problems, including receiving threatening phone calls to convert to Sunni Islam.  If returned to Pakistan, the applicant claimed that he would be targeted and killed due to his religious beliefs and refusal to convert.

5. The Protection visa application was refused by a delegate of the Minister on 31 July 2013 (CB 285-297).

6. The applicant applied to the Tribunal for review of the delegate's decision on 16 August 2013.  The applicant was assisted in making that application by a registered migration agent (CB 298-304).

7. The applicant gave oral evidence before the Tribunal on 21 March 2014.  At the hearing the applicant claimed that Shias were being killed in Sialkot on a daily basis.  On 25 March 2014, the applicant's representative provided a post hearing submission regarding this claim which included extensive country information in support.

8. The Tribunal handed down its decision on 1 April 2014 (CB 350-359) affirming the decision of the delegate to refuse to grant the applicant a Protection visa.

The Tribunal’s Decision

1. The Tribunal accepted that sectarian groups were targeting Shias in Pakistan and were active in Punjab (CB 355 at [9]).  However, the Tribunal noted that the applicant's representative only identified a report of a Shia being killed on 3 April 2013 (CB 355 at [12]), that it only located one report of possible extremist or sectarian violence since 2004 in Sialkot against Shias (CB 355 at [11]), and had been unable to find any news report regarding a Shia preacher being shot dead in front of a mosque in November 1999 (CB 354 at [6]).  Consequently, in light of the lack of country information, the Tribunal was not satisfied that Shias were being killed on a daily basis in Sialkot (CB 355 at [15]), nor that the applicant would be targeted by Sipah-e-Saba or any other militant group (CB 355 at [16]).

2. The Tribunal also doubted whether the applicant's claim that he had received threatening telephone calls was true.  However, even if given the benefit of the doubt, the Tribunal found that the applicant had not claimed any past harm had been caused (CB 354 at [7]), nor was it satisfied that anything had happened as a result of the telephone calls (CB 355 at [16]).

3. Consequently, the Tribunal found that the applicant was not a person to whom Australia owed protection obligations under ss.36(2)(a) or (2)(aa) of the Act (CB 356 at [17] and [22]).

Current Proceedings

1. The application pleads the following four grounds of review verbatim:

   1.  The RRT has not gone into the question of the persecution and other atrocities committed upon the Shia Muslims within the state of Pakistan, the fear is based upon the religion and the mass killings of the Shia Muslims through out Pakistan as we are struggling to survive in Pakistan, the Pakistani authorities have failed to give protection to the Shia Muslims in Pakistan.  The applicant in his submission stated that the applicant has been denied of the basic rights to services to the humans.  The capacity to earn a living has been denied because of being a being Shia Muslims.  The applicant has been faced to the serious harms; however, all the Shia organisations are facing the same.  The mass killings of the Shia is very well known, throughout, they are suffering from the very beginning throughout the Pakistan, and as we are being targeted by the Taleban’s.

   2.  Furthermore, there is a strong motive from the authorities to eliminate the Shia Muslims youths, it is an admitted fact that the Shias are facing the state of extreme discrimination, the Shias worship places are being set on fire and the Shia people are being killed, they are being targeted everywhere in Pakistan.

   3.  In the decision the RRT has failed to point out, as it is a matter of the evidence that the extreme kind of motivation existed by the authorities and the groups of the extremists Sunni to diminish the Sikhs.  There is a strong government authorities that the Shias are being killed indiscriminately all over Pakistan.  The Shias are being killed as the whole world media reports in the recent months there have been killings of the Shia Muslim to a toll of more than 3,000 only within these two months.  The majority of the Sunni extremists always discriminatory against the Shia and the majority of the Sunni stood shoulder to shoulder with the Sunni Muslim community to kill the Shia.  The Shia are not given the protection, the authorities lakes the protection, but the authorities, themselves are responsible for the killings of the Shia, and different kinds of discriminations.

   4.  That the applicant has undergone lot of harassments’ and the various acts of the persecutions, it is not sufficient to say that Pakistan is a great democracy, and they are secular, in fact they are the extremists Hindus involved in the mass killings of the different religions living there.

   It is not enough to say that the applicant came here to save his life and the liberty, it is of course the same position, but the applicant had no place in Pakistan, the applicant in order to save his life, arrived in Australia.  The applicant would have been killed because of his political activities and the involvements in the formation of the Shia political save movement.  The decision is without the jurisdiction and is liable to be set aside.

Applicant’s Submissions

1. At the hearing, the applicant indicated he did not wish to make any oral submissions other than to say that the Tribunal had failed to consider his claim.

2. The applicant filed written submissions in the Court’s Registry on 5 September 2014.  These submissions contain a restatement of the application’s grounds of review, as well as an extensive statement of the applicant’s substantive protection claims. 

3. The applicant’s written submissions have been reproduced immediately following.  For convenience, only issues relating to the application for review have been reproduced.  The applicant submitted verbatim:

   Grounds of the submission

   1.  That the applicants matter was not dealt with in accordance with the law and the legal manners and as such it is without the jurisdiction.

   2.  That the learned delegates of the Minister were unable to determine the matter of the applicant in accordance with the criteria given in the protection as given the guidelines by the UNHCR.

   3.  That the killings of the minority Shias is widely known all around the world.  It is beyond the understandings of the applicant that his father was killed by the extremists of the Sunni groups, moreover, the applicant has also brought in to the notice of the delegate and appeared before the RRT and made his submission by way of evidence.  That the applicants evidence was not properly dealt and was simply ignored by the Respondents.  This is miscarriage of the justice.

   4.  That the threat to the life of the applicant were not properly dealt with and the real harm to the life of the applicant was not addressed by the Respondents.  The law of natural justice was not applied in the matter of the applicant.  Whereas the failure of this application of the law has resulted in the grave miscarriage of justice.

   5.  That the applicant attached the bundle of the written evidence and the letters issued by the applicants party, all these letters are available on the file, the atrocities’ committed on the Shia Muslims have a history of the sectarian violence, the applicant by way of the evidence attached all the reports given in the electronic and the print media.

   Circumstances and The Facts

   …

   That the information used in the instant case by the Respondent NO 2 RRT are very vague and are not based on the facts and the circumstances of the applicants case.  The RRT instead of going on to the facts and the fear and harm to the applicant went in to the structure of the organization which is not required in the instant matter, when it was admitted that the.  The RRT was under the obligatory on the part of the RRT to give the decision on the merits of the case.  It was unnecessary to go in to the other facts not relevant to the applicants case.  Most of the facts and circumstances are relied on the government policies, which are again not called for in the instant case.  Moreover, the RRT was heavily dependent upon the newspapers and other web sites which are incorrect, but one thing is clear that the Shia Muslims are opened to the extreme hate and discrimination.  The RRT said that most of the Shia Muslims are the members of this Organization belonged to the lower middle class or otherwise, this is not true, many of the upper class of the Shia Muslims were killed, the RRT has erred in the statement of the decision in the instant matter.  It is submitted that the SBS the Australian Television network reported the recent clashes and the imposition of the curfew that why the fact has not been admitted in the instant matter, clearly this is a denial of the natural justice to which the applicant was entitled to get.  Again relying on the research of the RRT than why the report of one Mr. Zafar Bangash was ignored, this report has given the clue of the clashes in between religious groups, however the RRT did not consider the fact of the applicants life being in great danger of being killed by the hands of the Sunnies.  In the various statements of decision made by the RRT research it is evidence that there are lots of killings by the Sunni extremist in all most all the parts of Pakistan.  The Pakistani newspapers are full of the incidents happened in all most all the areas of Pakistan, but there is no mention of these killings in the decision, although the RRT has admitted the facts laid down by the applicant.  The applicant has given the full counts of the events and the sufferings by the hands of the Sunni Muslims, most of the research shows that there lot of bomb blasts in the Shia Mosques and other religious places.  The applicant put before the Tribunal all the evidence by way of the documents and other facts and circumstances, the RRT did not admitted the fact that the life of the applicant is in great danger of being killed by the hands of the Sunnies, all the evidence and the oral evidence was ignored by the RRT, on one hand they admit that there are lot of killings, bomb blast and other happenings, but the RRT is not believing as to the happening toward the applicant.  The whole of the decision suffers from the legal errors, and the applicant was not believed, this is a denial of the laws of the natural justice in the instant matter, and specially in the case of the applicant.  The applicant was not given any type of remedy of protection by the authorities despite the fact that the applicant many a times requested the authorities to give him the protection.

   The Refugee Review Tribunal gave the verdict that the case of the applicant does not falls within the definition of the law to be a refugee, it is submitted that the applicant was subjected to systemic harassments by the hands of the Sunnies, and other Sunni extremists groups.  These facts can be verified from the country information reports maintained by the US department of country information.  It is submitted that in the refugee law and in the general laws of the refugee any person who can not be given protection in any way can be given the protection.  The applicants family was under the constant harassments of the authorities concerned.  The RRT did not took in to consideration the fact that the applicant was an active member of the religious party, and is a person of importance as far as the acts of violence against the applicant are concerned.  The applicant was harassed, and is undergoing lot of the threats of being killed.  The applicant was again put to persecution, the applicant was again harassed by the hands of the opposite party, again the state protection was not available to the applicant, despite the request made to them.  The issue was totally ignored by the second respondent, instead the respondent number two discussed other issues which had nothing to do with the applicants case.  The applicant was open to be killed by the hands of the workers of the opposite religious groups, the definition that any person who cannot be given the protection can be given the protection.  The applicant is not an criminal as such the applicants case was not considered by the RRT.  The applicant submitted a bundle of the evidence in support of his case, but the RRT did not took any of those evidences in to accounts, this is an error of law, and is against the rules of the natural justice.  In FACT THE Taliban’s are doing all these activities in conjunction with the extremists Sunni hardliners those who are already involved in the above killings, the Taliban’s are behind them to all these killings of the Shia Muslims.

   …

Minister’s Submissions

1. The Minister submits that contrary to what is asserted in ground one, the Tribunal did consider the claim raised at the hearing that Shias were being killed in Sialkot on a daily basis.  At [9] of the Decision Record, the Tribunal accepted that sectarian groups were targeting Shias in Pakistan and were active in Punjab.  However, as raised at the hearing, it had only located one report of possible extremist or sectarian violence in Sialkot against Shias since 2004 (CB 355 at [11]), and the applicant's representative only identified a report of a Shia being killed on 3 April 2013 (CB 355 at [12]).

2. The Minister contends, in the absence of further reports, the Tribunal was not satisfied that Shias were being killed on a daily basis in Sialkot (CB 355 at [14]-[15]).  This finding was reasonably open to the Tribunal to make on the material and evidence before it and for the reasons it gave.  Consequently, the Minister submits that ground one is not made out.

3. The Minister submits that ground two is a factual submission (being an assertion about the motivation of the authorities to “eliminate Shia Muslim youths”).  It does not identify how the Tribunal fell into jurisdictional error and, therefore, the ground should be dismissed.

4. In regards to ground three, the Minister submits that to the extent it seeks to cavil with the Tribunal’s findings based on the evidence before it, the choice of country information and the weight to be assigned to it is for the Tribunal only.  Ground three is otherwise another claim or factual submission relating to the applicant's refugee status, about which this Court has no jurisdiction to consider.  Consequently, the Minister submits that ground three is not made out.

5. In regards to ground four, the applicant did not raise throughout the merits review process the claim that he was involved in political activities.  Consequently, the Tribunal cannot consider a claim that has not been made or does not squarely arises from the material before it.  Further, the Tribunal doubted the claim that the applicant had received threatening telephone calls after the death of his father.  However, in the event that the applicant had, the Tribunal was not satisfied that anything occurred to the applicant as a result of the telephone calls (CB 354 at [7] and 355 at [16]).  This finding was reasonably open to the Tribunal to make on the material and evidence before it and for the reasons it gave.  Consequently, the Minister argues ground four is not made out.

Consideration

1. Considerable portions of the applicant’s pleaded grounds and written submissions essentially restate or seek to introduce new substantive claims as to the merits of the applicant’s Protection application.  These claims seek to engage the Court in impermissible merits review: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 at 272. Accordingly, the Court cannot have regard to these claims.

2. I will first address the pleaded grounds of the application, then address the written submissions prepared by the applicant.

3. Ground 1 of the application alleges that the Tribunal failed to consider the applicant’s claim that Shia Muslims are being targeted throughout Pakistan. 

4. The Tribunal stated at [9]-[15] of the Decision Record (CB 355):

   9.       The Tribunal has had regard to the voluminous country material submitted by the applicant.  The Tribunal accepts that sectarian groups are targeting Shias in Pakistan and are active in Punjab.  However, the material submitted has identified one attack against Shias in Sikalot ten years ago, that is it identified a suicide bomb attack on a Shia mosque in September 2004 in which 30 people were killed and over 70 injured.  This attack was reportedly in retaliation for the killing of a LeJ member and the arrest of terrorist suspects.

   10.    The DFAT Thematic Report on Shias in Pakistan dated 18 December 2013 does not identify any Shia attacks in Sialkot.

   11.    As discussed with the applicant at hearing, the Tribunal only located one report of possible extremist or sectarian violence in Sialkot against Shia since 2004.

   12.    The adviser was given a further opportunity to provide evidence of sectarian violence against Shia in Sialkot and identified a further report of a Shia being killed on 3 April 2013.

   13.    The adviser has suggested that because Sufi (Sunni) shrines in Sialkot have been attacked, and because there is a report militants have come from Sialkot and because a Shia person was attacked in April 2013, it is not far-fetched or implausible that the violence may spread to Sialkot and that it would not be reasonable for the applicant to go to Sialkot.

   14.    In the Tribunal’s respectful opinion, this is conjecture.  The lack of any reports of sectarian violence in Sialkot other than the attach identified some ten years ago in 2004 and the attack on one Shia on 3 April 2013 does not indicate to the Tribunal that the Shia community in Sialkot has been or is being targeted by sectarian extremist in the last decade.

   15.    The Tribunal finds that the lack of country information indicating that Shia are targeted in Sialkot does not support the applicant’s claims that Shia were or are being killed on a daily basis in Sialkot.  In reaching this conclusion the Tribunal has considered the letters from Hassain Malik and Mohammad Khawar Javid Qureshi who are both located in Australia.  These letters talk about the general situation in Pakistan and do not shed light on the situation in Sialkot.  Given the lack of country information in support of any suggestion that the applicant is at danger in Sialkot because he is Shia, the Tribunal is not persuaded by these letters.

1. The Tribunal accepted sectarian groups were targeting Shias in Pakistan and were active in Punjab.  However, as it raised with the applicant and his adviser at the hearing, it had only located one report of violence against Shia in Sialkot since 2004.  The applicant’s adviser was given an opportunity to furnish further evidence and provided a report of a single Shia being killed in April 2013.  Ultimately, the Tribunal was not satisfied Shias were being killed on a daily basis in Sialkot.

2. On a fair reading of the Decision Record and the Court Book, this finding was reasonably open to the Tribunal make for the reasons it gave and on the material before it.  It cannot be said that the Tribunal failed to consider the applicant’s claim that Shia Muslims are being targeted in Pakistan and, accordingly, this ground cannot be sustained.

3. Ground 2 of the application seeks to engage the Court in impermissible merits review (see [24] above) and cannot be sustained.

4. Ground 3 of the application, to the extent that it raises complaints about the Tribunal’s use of or reliance on country information, cannot be sustained.  The choice of country information and weight given thereto is a matter for the Tribunal.  In the decision of Gray, Tamberlin and Lander JJ in NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10, their Honours stated at [11]:

   11.    … There can be no objection in principle to the Tribunal relying on ‘country information’. The weight that it gives to such information is a matter for the Tribunal itself, as part of its fact-finding function. Such information as the Tribunal obtains for itself is not restricted to ‘guidance’, as the appellants submitted. It may be used to assess the credibility of a claim of a well-founded fear of persecution. It is not, as the first appellant submitted, an error of law, or a jurisdictional error, for the Tribunal to base a decision on ‘country information’ that is not true. The question of the accuracy of the ‘country information’ is one for the Tribunal, not for the Court. If the Court were to make its own assessment of the truth of ‘country information’, it would be engaging in merits review. The Court does not have power to do that.

5. The remainder of the ground again seeks to engage the Court in impermissible merits review which this Court cannot consider (see [24] above).

6. Ground 4 of the application (and the following unnumbered paragraph) appear to raise claims made by the applicant in respect of his political opinions.  No such claims were raised before the delegate or the Tribunal.  The Tribunal cannot consider a claim that has not been made or does not squarely arise on the material before it (see Htun v Minister for Immigration and Multicultural Affairs(2001) 194 ALR 244 at [42]; Dranichnikov v Minister for Immigration and Multicultural Affairs(2003) 197 ALR 389 at [22]–[24], [27]). To the extent that this ground invites the Court to examine the merits of the Tribunal’s decision, I refer to the Court’s reasons noted at [24] above. This ground cannot be sustained.

7. I now turn to the written submissions that were filed on 5 September 2014.  These submissions do not appear to address the grounds of the application in any discernible manner.  Further, they do not appear to have been prepared in a manner that separates relative claims, however, the applicant is a self-represented litigant from a non-English speaking background.  Accordingly, having read the submissions in detail, I propose to deal with the claims arising therefrom rather than by individual paragraph.

8. The first two numbered paragraphs of the applicant’s written submissions claim the Tribunal failed to deal with the applicant’s protection claim in accordance with the UNHCR criteria or in accordance with the law, and as a result there the decision is without jurisdiction.  This claim has not been particularised in any further detail.  Having regard to the Tribunal’s Decision Record, particularly at [1]-[4], [17]-[18] and [22]-[23], the Tribunal has correctly interpreted the relevant law and discharged its function in accordance to the relevant law.  It cannot be said there has been an error made, in the nature claimed by the applicant, particularly without further particularisation.  This submission cannot be sustained.

9. The applicant has also made extensive complaints in his written submissions about the Tribunal’s reliance on country information.  In this respect, I refer to and rely on the reasons set out above at [31] and the authority of NAHI (supra).  Such a submission cannot be sustained.

10. To the extent that the applicant complains that the Tribunal failed to consider his evidence, such a claim cannot be sustained.  In the Decision Record at [15] the Tribunal considered the two letters submitted by Hassain Malik and Mohammad Khawar Javid Qureshi, but was not persuaded by them.  It also gave reasons for this finding that were open to it to make.

11. The Tribunal has also considered the various items of country information submitted in support of the applicant’s claim both before and after the Tribunal hearing (see Decision Record at [9]-[15], [27]-[38]). The Tribunal also reproduced the applicant’s substantive protection claim (see Decision Record at [25]) and had regard to the applicant’s evidence given at the Tribunal hearing (see Decision Record at [26]-[36]). Ultimately, it considered his claims and evidence (see Decision Record at [5]-[16]), but was ultimately not satisfied the applicant was a person to whom Australia had protection obligations under ss.36(2)(a) or 36(2)(aa).

12. Consequently, any claim that the Tribunal failed to consider (or ignored) any of the applicant’s claims or evidence cannot be sustained.

13. The remainder of the written submissions express disagreement with findings of fact made by the Tribunal, make substantive submissions in support of the applicant’s Protection visa application, and seek to raise new claims in support of his Protection visa application.  As noted above at [24] these submissions seek to engage the Court in impermissible merits review and cannot be considered.

14. Accordingly, there is no error on the part of the Tribunal raised in the applicant’s written submissions.

Conclusion

1. I have read the contents of the Court Book and, particularly, the Decision Record and no error is apparent on the part of the Tribunal.  Further, the application and applicant’s written submissions do not successfully raise any error on the part of the Tribunal.  The application should be dismissed with costs awarded to the Minister.

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Judge Lloyd-Jones

Associate: 

Date:  24 March 2015