SZUPW v Minister for Immigration

[2015] FCCA 1651

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUPW v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1651

Catchwords:
MIGRATION – Application for judicial review of decision of Refugee Review Tribunal (Tribunal) – whether the Tribunal made an irrational finding that the applicant had contrived documents in support of his Protection visa application – whether the Tribunal erred in considering the applicant’s claims under s.36(2)(aa) of the Migration Act 1958 (Cth) – no jurisdictional error – application dismissed.

Legislation:  

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

Applicant: SZUPW

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1815 of 2014

Judgment of: Judge Manousaridis

Hearing date: 10 June 2015

Delivered at: Sydney

Delivered on: 10 June 2015

REPRESENTATION

Applicant in person assisted by an interpreter.

Counsel for the Respondents: Ms R Graycar

Solicitors for the Respondents: Minter Ellison

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs set in the amount of $6,646.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 1815 of 2014

SZUPW

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The applicant seeks judicial review of a 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 Tribunal affirmed the delegate’s decision because it found most of the applicant’s claims for protection had been contrived.

2. The applicant’s claims for protection were based on the following asserted facts.  The applicant was born to a Sunni Muslim family in Pakistan, but was later convinced by a school friend to convert to Shi’a Islam.  The applicant attended religious teachings and prayers with his friend, and these religious activities encouraged the applicant to speak up about his Shi’a belief.

3. The applicant’s participation in these religious activities was not liked by his relatives and the Mullah, who is the head of the Sunni section of the applicant’s area.  On one occasion, the Mullah met the applicant on his way back from religious activities and tried to convince the applicant to leave Shi’a Islam, but the applicant refused. 

4. In June 2012, the applicant was stopped by the Mullah and a group of Sunnis.  The applicant was told he was liable to be punished by death for converting to Shi’a Islam.  The applicant was then severely abused and beaten, causing bruising to his ribs. The applicant’s relatives were unable to help him, so the applicant lodged a First Information Report (FIR) with the local police, but no action was taken because the Mullah is an influential person who is supported by the police.

5. After this incident, the applicant, accompanied by his friend and another convert (T), decided to meet with the Mullah.  But the Mullah became very angry and abusive and told the men they should be punished by death and will tell the police to kill them.  T was also specifically warned by the Mullah.  The applicant reported this to the police, but they did not do anything.  The applicant and his friends told one of the heads of their Shi’a group what happened.  The head and other people went to see the Mullah, but they were badly beaten.

6. In August 2012, the Sunnis, facilitated by T’s father, raided T’s house and murdered him.  The group declared the next person to be murdered was the applicant.  When the applicant learnt of this threat, he fled his village and took refuge at another friend’s house.  The applicant’s friend advised him to leave Pakistan as soon as possible.  The applicant arrived in Australia in November 2012.  The applicant fears there is no state protection available to him in Pakistan as a Sunni Muslim.

7. The Tribunal identified a number of inconsistencies with the applicant’s evidence and noted that the contradictions in the applicant’s claims “raised doubts for the Tribunal as to whether the applicant was providing an accurate account of his circumstances”.[1]  Some of the inconsistencies the Tribunal raised with the applicant included the following: 

   (a)The applicant claimed he was attacked by the Mullah and others in June 2012, but before the delegate he claimed the attack occurred in July 2012, and at the Tribunal hearing he claimed he was attacked in June 2012.[2]

   (b)The applicant told the delegate that he had ceased participating in Sunni activities in 1998, and his family found out he was converting to Shi’a Islam in 2005.  But before the Tribunal, the applicant said he was still participating in Sunni religious activities, and pretending to be a Sunni until 2010, and his family did not know he was converting to Shi’a Islam until he made a public announcement.[3]

   (c)The applicant told the delegate his family mistreated him in 2005, but before the Tribunal he said that this occurred in 2010.[4]

   [1] CB288, [30]

   [2] CB287, [23]

   [3] CB287, [24]

   [4] CB287, [24]

8. The Tribunal considered the reasons the applicant gave for the inconsistencies in response to a letter the Tribunal sent to the applicant listing those inconsistencies.  The Tribunal found, however, that the applicant contrived his claims to enhance his Protection visa application, and it was for that reason the applicant “was unable to recall, discuss, and repeat those claims, throughout the processing of his application”.[5] 

   [5] CB295, [59]

9. The Tribunal did not accept the applicant’s claims that he studied Shi’a Islam for 12 years before converting in 2010, or that he was beaten by the Mullah and others in 2012, and they now want to kill him.[6]  It also found that the applicant had contrived his claim of religious training and conversion, because the applicant was unable to demonstrate any real knowledge regarding Sunni and Shi’a Islam.[7]  Despite this, the Tribunal accepted that the applicant is a member of a Shi’a organisation and considers himself a Shi’a Muslim.[8]

   [6] CB295, [59]

   [7] CB295, [60]

   [8] CB296, [64]

10. The Tribunal considered two FIR documents the applicant submitted in support of his claims.  One FIR document related to the murder of T, and the second related to an incident when the applicant and others attracted the adverse attention of the police.  The Tribunal found the first FIR document contradicted the applicant’s version of events regarding T’s murder.[9]  As to the second document, that did not relate to a claim the applicant made.[10]  The Tribunal did not accept the FIR documents accurately described the applicant’s circumstances in Pakistan, and concluded they were contrived.[11]

    [9] CB296, [63]

    [10] CB296, [63]

    [11] CB296, [63]

11. The Tribunal also considered country information reporting an increase in sectarian violence in Pakistan, and that discrimination against Shi’a Muslims exists.  However, the Tribunal formed the view that only a small proportion of the Shi’a community in Pakistan has been harmed in the sectarian violence or targeted by religious extremists, and determined that the vast majority of Shi’a Muslims in Pakistan are not targeted or harmed for their religion, or for practising their religion.[12]

    [12] CB296, [65]

12. The Tribunal concluded at paragraph 66 of its reasons that it had considered the applicant’s evidence regarding his particular circumstances, and it was not satisfied the applicant is involved in any activity which will make him a person of particular interest to religious extremists in Pakistan, or place him at risk of harm in sectarian violence.  The Tribunal also was not satisfied that the applicant is at risk of being discriminated against or targeted to such an extent as to constitute persecution for Convention reasons, and advised that there is no real chance that the applicant will suffer persecution in Pakistan for being a Shi’a Muslim.

13. The applicant, who is not legally represented, relies on an amended application for review.  The amended application contains two grounds.  The first ground is:

    As part of the reason for rejecting the claim, the Tribunal stated: “. . . The Tribunal has considered the documents provided by the applicant in support of his claim . . . The Tribunal also considered [t]he FIR reports submitted. One related to the killing of Mr [H] . . . The other FIR report relates to an incident . . . The Tribunal has formed the view that the applicant . . . contrived documents which he believed would assist him to obtain a protection visa . . .” (CB296 at [63] The Tribunal rejected the claim stating that: “The Tribunal . . . does not accept that they accurately describe the applicant’s circumstances in Pakistan”. (CB296 at [63]. The Tribunal’s rejection has been irrational; and illogical and such that reasonable Tribunal would not make. The Tribunal hereby committed jurisdictional error.

    Particulars

    The Tribunal erred in that:

    1.1The Tribunal erroneously assumed that all complaints would always be lodged;

    1.2    Such complaints would be lodged promptly;

    1.3The claim is untrue as the documents were contrived to support the claim and that the accuracy of the claim was not acceptable.

14. The applicant – who, as I have said, is not legally represented – made no submissions before me in support of this ground. 

15. There are a number of contentions contained in this ground and the particulars to the ground.  The first are the contentions made in paragraphs 1.1 and 1.2 of the particulars, namely, that the Tribunal erroneously assumed that all complaints would be lodged, and that such complaints would be lodged promptly.  The Tribunal’s findings that the FIRs, to which ground 1 appears to be directed, had been contrived does not appear to have been based on these assumptions.  As I have already noted, the Tribunal did not accept one of the FIRs because the Tribunal found that the “description provided in the document was completely different to the version provided by the applicant in his evidence”,[13] and “it contradicted the applicant’s version of events”.[14]  The Tribunal did not accept the other FIR because it was “not a claim which the applicant has made in any of his other evidence he provided in support of the application”.[15]

    [13] CB287, [28]

    [14] CB296, [63]

    [15] CB296, [63]

16. The second contention contained in ground 1 is that made in paragraph 1.3 of the particulars.  It is there asserted that the “claim is untrue as the documents were contrived to support the claim and that the accuracy of the claim was not acceptable”.  This appears to be an error.  It is reasonable to suppose that the particular intended to assert that the documents were not contrived.  Whether or not the documents were contrived, however, was a matter for the Tribunal to determine and not for the Court.

17. The third contention contained in ground 1 is what appears to be the essence of the ground, and that is that the Tribunal’s finding that the applicant contrived documents which he believed would assist him to obtain a Protection visa was irrational or not otherwise reasonably open to it.  I do not accept that contention.  It was reasonably open to the Tribunal to find that the applicant contrived the documents on which he relied, and it was reasonably open to the Tribunal to make that finding for the reasons it gave. That the applicant provided to the Tribunal in support of his claim a document it was reasonably open to the Tribunal to find was inconsistent with the evidence the applicant gave was a rational basis for the Tribunal to conclude, as it did, that the document the applicant provided to the Tribunal was contrived.

18. I now move to the second ground stated in the amended application:

    The Tribunal committed jurisdictional error when it failed [sic] conflated the issues relating to complementary claims [sic] with s 36(2)(a) claim; failed to take into account all personal circumstances and erred in the application of “real risk” test.

    Particulars

    2.1The Tribunal failed to address whether the applicant was in need of complementary protection simply conflating its findings in respect of the Applicant’s protection visa claims.

19. The applicant also made no submission in relation to this ground. 

20. The ground appears to be directed to the Tribunal’s considering whether the applicant’s claim attracted the complementary protection criteria specified in s.36(2)(aa) of the Migration Act 1958 (Cth) (Act), by reference to the findings it made when considering whether the applicant satisfied the criteria specified in s.36(2)(a) of the Act. In that regard, the Tribunal said at paragraph 73 of its reasons:

    The Tribunal has considered whether there are 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 that he will suffer significant harm under the complementary protection criterion.  However, in view of the above findings regarding the credibility of the applicant’s claims, the Tribunal finds that similar consideration apply here.  The Tribunal is not satisfied that the applicant is at risk of suffering significant harm in Pakistan, from his family and extremists, for converting to the Shia religion.  It finds that these claims were contrived to enhance the application.

21. The Tribunal makes no jurisdictional error only because, when considering a claim for complementary protection, it incorporates findings the Tribunal made when considering whether an applicant is a refugee within the meaning of the Refugees Convention. The Tribunal will make a jurisdictional error only where it can reasonably be inferred from such incorporation the Tribunal failed to ask itself the question s.36(2)(aa) of the Act required the Tribunal to ask itself when considering the claim based on complementary protection.

22. There is nothing to suggest the Tribunal in the case before me did not understand the question it was required to address when considering whether the applicant was entitled to protection as provided for by s.36(2)(aa). The Tribunal dealt with complementary protection in a separate section. The Tribunal correctly identified the criteria the applicant had to meet under that subsection in order to be entitled to complementary protection. And when considering the applicant’s claim, the Tribunal in terms asked itself and answered the very question s.36(2)(aa) required it to ask itself, namely, whether there are 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 that he will suffer significant harm.

23. It follows, therefore, that the applicant has not established either ground 1 or ground 2 and that the application will be dismissed.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date:  18 June 2015