SZUJM v Minister for Immigration

[2016] FCCA 826

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUJM v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 826

Catchwords:
MIGRATION – Judicial review of decision of Refugee Review Tribunal (Tribunal) affirming the decision of a delegate of the first respondent not to grant the applicant a Protection (Class XA) visa  (Protection visa) – whether Tribunal failed to consider evidence – whether Tribunal acted irrationally – whether Tribunal was biased – no jurisdictional error.

Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16 Minister for Immigration and Citizenship v SZRKT [2013] FCA 317

Applicant: SZUJM

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1386 of 2014

Judgment of: Judge Manousaridis

Hearing date: 25 March 2015

Delivered at: Sydney

Delivered on: 13 April 2016

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 Administrative Appeals Tribunal is substituted for the Refugee Review Tribunal as the second respondent.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1386 of 2014

SZUJM

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant, a citizen of Pakistan, applies for judicial review of a decision of the second respondent (Tribunal) affirming a decision of a delegate of the first respondent (Minister) refusing to grant the applicant a Protection (Class XA) visa (protection visa).

2. The applicant arrived in Australia in October 2011 as the holder of a visitor visa. He applied for a protection visa on 6 January 2012.  A delegate of the Minister refused to grant the applicant a protection visa on 17 August 2012. The applicant sought review of the delegate’s decision. The Tribunal affirmed the delegate’s decision on 28 April 2014.

Claims for Protection

1. In a statement dated 6 January 2012 that formed part of his application for a Protection visa,[1] the applicant claimed his older brother introduced him to a Jihadi organisation in Lahore in 2009. The organisation preached against “the forces that were allegedly working against Islam and particularly Pakistan”, and its preachers preached “against the infidels (whoever fighting in Afghanistan and Pakistan against Islam)”. The applicant and his brother began “participating in this sort of preaching actively” and were given “unconditional financial support”. The applicant and his brother, however, were under the false impression that the financial support was unconditional and payable at their convenience.

   [1] CB57-59

2. The applicant and his brother were unaware the organisation conducted terrorist activities until they were asked to participate in “learning war (attack and defence) techniques”. In July 2011 the applicant and his brother were told they would “be embarking on a higher sacred but secret mission in the near future”. The applicant and his brother “realized that our religious attachment had taken the wrong turn”. The applicant and his brother were aware that some of their friends in the organisation were sent on secret missions but had not returned. The applicant and his brother decided to leave Pakistan in order to seek protection in Australia. They applied for and obtained tourist visas, and arrived in Australia in October 2011.

3. The applicant’s brother had a store in Lahore that was being run by the applicant’s younger brother. On 7 November 2011 the applicant’s brother’s store was robbed and their family were threatened by the organisation. The applicant claims his family were told that the Jihadi organisation became aware of the applicant and his brother’s intentions and the organisation demanded the money they provided to the applicant and his brother and also their “presence in Pakistan”.

Tribunal’s Reasons

1. The Tribunal did not find the applicant to be a credible and truthful witness, and found the applicant fabricated his claims in orders to achieve an immigration outcome.[2] The Tribunal relied on a number of matters.

   [2] CB142, [31]

2. First, the Tribunal found the evidence the applicant gave in relation to the organisation he claimed to have joined in Pakistan to be vague, evasive and unconvincing.[3] The Tribunal noted, for example, that at his interview with the delegate the applicant said he did not know the name of the organisation he joined because no one had told him, and that, whenever he asked what the name of the organisation was, the applicant was told that what they were doing was for “the sake of God”.[4]

   [3] CB137, [12]

   [4] CB137, [13]

3. Second, the Tribunal found not credible the applicant’s evidence in relation to the organisation into which the applicant claims to have been recruited.[5] The Tribunal did not find credible the applicant did not know the name of the organisation or that the organisation he joined was extremist, given that he claims to have been a member for two years during which he attended sermons, delivered sermons, participated in combat training, and taught children.[6]

   [5] CB138, [15]

   [6] CB138, [15]

4. Third, the Tribunal found the applicant’s evidence in relation to the applicant’s claimed participation in combat training unconvincing and lacking in credibility.[7] The Tribunal particularly relied on the contradictory evidence given by the applicant’s brother in a separate hearing before the Tribunal in connection with an application for protection the applicant’s brother had made.[8]

   [7] CB138, [16]

   [8] CB139, [17]-[19]

5. Fourth, the Tribunal found unpersuasive the applicant’s explanation about why the organisation had sought to recruit the applicant to undertake combat training and to kill non-believers.[9] The applicant said that it was because his brother had been with the organisation for three years and they trusted his brother.[10]

   [9] CB139-140, [23]

   [10] CB139-140, [23]

6. Fifth, the Tribunal found unpersuasive the applicant’s evidence about why the organisation wanted to harm him.[11] For example, the applicant said he stopped going to the mosque after July 2011, yet nothing had happened to him in Pakistan.[12]

   [11] CB140, [24]

   [12] CB140, [24]

7. Sixth, the applicant arrived in Australia on 7 October 2011, but he did not apply for protection until 6 January 2012. The Tribunal found unpersuasive the applicant’s explanation for his delay.[13]

   [13] CB141, [28]

8. The Tribunal accepted the applicant comes from a religious family, that he taught the Koran to children, and that he listened to or delivered religious sermons. The Tribunal, however, otherwise did not accept the applicant’s claims. The Tribunal did not accept the applicant had joined a jihadi organisation either voluntarily or at the instigation of his brother; that the applicant was asked by his brother or anyone else to participate in martial arts training or combat training or undertake a secret mission at any point; that the applicant had antagonised any individual or organisation, or that the applicant is wanted by any individual or organisation for any reason, let alone Convention reasons; that the applicant is financially indebted to any individual or organisation; that there is a threat to the applicant’s ability to earn an income in Pakistan; that the robbery at the store was anything other than random criminal activity; and that members of the applicant’s family were threatened by anyone after the applicant came to Australia or that shots were fired outside of the applicant’s house.[14]

   [14] CB142, [32]

Grounds of Review

1. The application filed in this court contains three grounds of review.

Ground 1

1. Ground 1 is as follows:  

   The Refugee Review Tribunal made a jurisdictional error by not taking into account evidence produced by the applicant.

   Particulars

   The Tribunal disregarded applicant’s evidence on the basis that applicant was not a credible witness due to inconsistencies in his evidence. The Tribunal extended this perception of the applicant during the hearing, not to take into account vital information and evidence that were relevant to the applicant’s case.

2. In relation to this ground, the applicant, who is not legally represented, submitted he had told the truth, he did not lie, his mother passed away, his daughter was born but “I didn’t visit them because I have a fear of life”. The applicant also said “I have provided a birth certificate and death certificates …. and then they say I’m wrong”.[15]

   [15] T6.0-5

3. Ground 1 does not identify the evidence the applicant claims the Tribunal failed to take into account. The only evidence the applicant identified at the hearing before me is a birth certificate and “death certificates”. The Court Book contains a copy of a birth certificate of what appears to be the applicant’s daughter,[16] and a copy of a death certificate of the applicant’s mother that records the applicant’s mother passed away on 28 August 2012.[17] The applicant made no submission to me about the relevance, if any, these certificates had before the Tribunal.

   [16] CB117

   [17] CB118

4. The Tribunal does not in its reasons for decision refer to these certificates. I am not prepared to infer, however, that the Tribunal did not consider them. The Tribunal accepted the applicant has a family in Pakistan. That the applicant’s mother had passed away, and his daughter had been born, after the applicant left Pakistan could at most have reasonably been considered by the Tribunal to be only of marginal relevance to its assessment of the applicant’s claims that he had a well-founded fear of persecution. I am not prepared to discount as a reason for the Tribunal’s not expressly referring to those certificates the Tribunal considering them to be either irrelevant or only marginally relevant.

5. Even if, however, the correct inference is that the Tribunal did not consider the certificates, and those certificates were reasonably relevant, that does not necessarily mean the Tribunal would have made a jurisdictional error. Merely to ignore relevant material does not establish jurisdictional error.[18] Whether such failure to consider material constitutes jurisdictional error in a given case depends on “the importance of the material to the exercise of the Tribunal’s function and thus the seriousness of any error”.[19] In my opinion, the two certificates were not important to the exercise of the Tribunal’s function, and the Tribunal’s not having considered the certificates – assuming that is the correct inference that should be drawn – cannot reasonably be considered a serious error. That is so because, at most, the certificates could only have reasonably been regarded as having marginal relevance, given that the Tribunal had accepted the applicant had a family in Pakistan.

   [18] Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16 at [58] agreeing with Robertson J in Minister for Immigration and Citizenship v SZRKT [2013] FCA 317 at [97] and [122]

   [19] Minister for Immigration and Citizenship v SZRKT [2013] FCA 317 at [111]

6. The Tribunal, therefore, made no jurisdictional error by not referring to the certificates in its reasons for decision.

7. The Minister, in his submissions, interpreted ground 1 as complaining that the Tribunal did not consider two pieces of documentary evidence. The first was a “First Information Report” that related to the robbery of the store. The Tribunal, however, did refer to this document, and accepted as true that which the document purported to report.[20] The Tribunal, however, did not accept that the robbery was perpetrated by the jihadist organisation. That was a finding that was reasonably open to the Tribunal for the reasons it gave.

   [20] CB141, [29]

8. The second document the Minister interprets ground 1 as claiming the Tribunal did not consider is a certificate confirming the applicant had memorised the Quran.[21] The Tribunal did not refer to this document. I am not prepared, however, to infer the Tribunal did not consider it. The Tribunal accepted the applicant had come from a religious family, he had taught the Quran to children, and that he listened to or delivered religious sermons.[22]

   [21] CB64-65

   [22] CB142, [32]

9. Ground 1 also appears to complain that the Tribunal erred in relying on inconsistencies in the applicant’s evidence to make an overall adverse finding relating to the applicant’s credibility. As my summary of the Tribunal’s reasons indicates, that does not accurately reflect the reasons for which the Tribunal did not accept the applicant was a credible witness. The Tribunal relied on a number of matters, on each of which it was reasonable for the Tribunal to rely, for concluding the applicant was not a credible witness.

10. Ground 1, therefore, fails.

Grounds 2

1. Ground 2 is as follows:

   The Tribunal’s conclusion that the applicant did not have a well-founded fear of persecution in Pakistan was illogical or irrational, manifested a misunderstanding or misconstruction of the Convention test or arose out of a failure to take relevant information into account.

   Particulars

   The Tribunal found that there is not a real chance that the applicant will suffer serious harm in Pakistan based on his religion (or any Convention ground). He does not hold a well-founded fear of persecution.

2. In relation to this ground, the applicant submitted a number of matters: if he did not fear returning to Pakistan, he would not be sitting in Australia away from his daughter, and his mother’s having passed away; police had informed the applicant they could not save his child because if they did, the children of the police would also be in danger; the applicant’s mental condition was bad, and he now is a mental patient; he works but because of his mental condition he has forgotten to do a number of tasks; and he works in Australia and has been paying his taxes.

3. None of the matters the applicant raised in the submissions he made to me disclose any jurisdictional error by the Tribunal. Part of the submissions could only be relevant to whether the applicant has a well-founded fear of persecution if he returns to Pakistan. This Court does not have jurisdiction to determine that question, and that part of the applicant’s submissions are not relevant. The other parts of the applicant’s submissions are also not relevant. It is not suggested the applicant suffered from any mental condition at the time of the hearing before the Tribunal. Nor has it been suggested that if the applicant was suffering from a mental condition, the Tribunal was aware or ought reasonably to have been aware of that fact. In any event, there is no evidence before me that the applicant suffered from any medical condition that prevented him from meaningfully participating at the hearing before the Tribunal or otherwise which affected his ability to give evidence and present arguments.

4. As for the ground as stated in the application, it discloses no jurisdictional error. It does not identify the respects in which the Tribunal’s decision was irrational, or failed to apply a correct understanding of the definition of “refugee” in the Refugees Convention. [23] There is nothing in the material before me to suggest the Tribunal applied an incorrect understanding of the Refugees Convention; and the Tribunal’s finding that the applicant’s claims were not credible was one reasonably open to it for the reasons it gave.

   [23] Convention Relating to the Status of Refugees 1951 as amended by the Protocol Relating to the Status of Refugees 1967, Article 1A(2)

5. Ground 2, therefore, is also not made out.

Ground 3

1. The third ground is:

   The applicant was not afforded natural justice.

   Particulars

   The applicant believes that he was not afforded a fair hearing. The Member’s judgment was clouded by his own pre-conceived beliefs, notions and as such the applicant could not be afforded an unbiased hearing. Such pre-conceived views are displayed by the Member where evidence is simply regarded as not credible

2. In support of this ground, the applicant submitted to me that when the applicant tried to answer questions, the Tribunal member said “Don’t explain, just answer me what I am asking, don’t tell me anything else”.[24] The applicant said the Tribunal member was “a bit rude” and that the applicant “was scared”, and he thought “I won’t get a fair hearing from him”.[25] The applicant also complained he could not understand the interpreter who was at the hearing before the Tribunal. The applicant submitted that at “one time I thought I should cancel this interpreter, then I thought it’s not good timing for tribunal so I go along with him”.[26] In response to my question, the applicant said he did not raise with the Tribunal the difficulties the applicant claimed he had with the interpreter because “I was scared. I didn’t say anything”.[27]

   [24] T7.15-20

   [25] T7.25-30

   [26] T7.40

   [27] T7.45

3. There are two difficulties with the submissions the applicant made to me. The first is they are not reflected in the particulars. The particulars allege bias, but the bias is said to consist in the Tribunal member having his own preconceived beliefs; and the particulars do not allege any issue in relation to interpretation. The second difficulty is that the transcript of the hearing before the Tribunal is not in evidence, and there is no other evidence which suggests there were any difficulties with the interpretation.

4. It is true that the applicant could have applied for leave to amend the application and to give oral evidence under oath of what he recalled occurred before the Tribunal. Had he applied for leave to do these things, however, I would not have permitted it. The hearing before me took place on 25 March 2015. On 10 July 2014 I made directions that included a direction that the applicant file any affidavits on which he intended to rely by 28 August 2014, including a transcript of the hearing before the Tribunal. The applicant did not file any affidavit, and he did not provide a transcript of the hearing before the Tribunal.

5. Even if the applicant had given evidence on oath to the effect of the submissions he made from the bar table, I would not have accepted what he said. Although at the hearing before the Tribunal the applicant was not assisted by a lawyer or migration agent, the applicant had the benefit of legal assistance, both before and after that hearing. After the hearing, which took place on 31 October 2013,[28] the Tribunal forwarded to the applicant’s lawyer a letter dated 4 November 2013 identifying particulars of information which the Tribunal considered would be the reason or a part of the reason for affirming the delegate’s decision.[29] The applicant’s lawyer responded by letter dated 19 November 2013.[30] It is apparent from that letter that it was written after the lawyer took instructions from the applicant. Had the applicant believed he had been given an unfair hearing, and that there had been poor interpretation, it could reasonably have been expected that the applicant would have instructed his lawyer to inform the Tribunal of those matters, assuming there was any substance to them. There is nothing in the applicant’s letter to suggest the applicant had raised these matters with his lawyer or that, had he raised them with his lawyer, his lawyer considered them to be of any concern.

   [28] CB115

   [29] CB127-129

   [30] CB130-131

6. Finally, even if I assume as true what the applicant said from the bar table, I would not have found the Tribunal acted in a manner that indicated it was biased, or behaved in a manner that could have led a fair-minded bystander to apprehend the Tribunal would not bring to bear an impartial mind to its consideration of the applicant’s case. The applicant relied on one statement from the Tribunal as giving rise in him a fear the Tribunal would not give him a fair hearing. The example by itself, however, would not have persuaded me that the Tribunal conducted itself in a manner that manifested bias or which could reasonably have given rise to an apprehension of bias. By itself, the Tribunal member’s comment, as recalled by the applicant, might not have been objectionable if, as appears to be the case, the Tribunal was directing the applicant to answer the question that was being asked of him. Even if objectionable, however, the Tribunal’s statement would have to be considered in the context of the hearing as a whole. In that regard, it appears the hearing went for almost three hours.[31] In the absence of evidence about what took place during the hearing as a whole, I would not have found from the single example on which the applicant relies that the Tribunal acted in a manner that manifested bias or which could reasonably be apprehended to have manifested bias.

   [31] CB115-116

1. Finally, even if I were to assume the applicant had difficulties with the interpreter, in the absence of evidence of the matters the applicant claims had not been interpreted, I would not have been prepared to conclude that the hearing miscarried because of any interpretation issues.

2. Ground 3, therefore, also fails.

Disposition

1. I propose to order that the application be dismissed. I also propose that the Administrative Appeals Tribunal be substituted for the Tribunal as the second respondent.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Date: 13 April 2016