SZVAD v Minister for Immigration

[2016] FCCA 2094

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVAD v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2094

Catchwords:
MIGRATION – Protection visa application – adverse credibility findings by Tribunal – no jurisdictional error – application for judicial review dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 65, 476

Cases cited:
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Michael Wilson & Partners Ltd v Nicholls & Ors (2011) 244 CLR 427
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Minister for Immigration v SCAR (2003) 75 ALD 151
SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668
South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16
Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71
SZMSA v Minister for Immigration [2010] FCA 345
SZMSF v Minister for Immigration [2010] FCA 585

Applicant: SZVAD

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2474 of 2014

Judgment of: Judge Dowdy

Hearing date: 25 February 2016

Delivered at: Sydney

Delivered on: 23 August 2016

REPRESENTATION

Counsel for the Applicant: The Applicant appeared in person with an Urdu interpreter

Counsel for the First Respondent: Mr M. P. Cleary

Solicitors for the First Respondent: Australian Government Solicitor

THE COURT ORDERS AS FOLLOWS:

1. The Application filed in this Court on 4 September 2014 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2474 of 2014

SZVAD

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application under s.476 of the Migration Act 1958 (Cth) (the Act) for judicial review of a decision of the Second Respondent, the Administrative Appeals Tribunal (at the time of the decision the  Refugee Review Tribunal) (Tribunal) dated 11 August 2014 in which the Tribunal affirmed a decision made on 22 November 2013 by a Delegate (the Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister) to refuse to grant the Applicant a Protection (Class XA) visa under s.65 of the Act (Protection visa).

2. The Applicant is a male citizen of Pakistan who was born on 1 January 1974 and is thus 42 years of age.

Background

1. The Applicant first arrived in Australia on 17 November 2011 on a Tourist visa. He departed Australia to go back to Pakistan on 5 December 2011, but then arrived back in Australia on 22 December 2012 on a second Tourist visa.

2. Then on 21 January 2013 he applied for a Protection visa.

3. In his Protection visa application, the Applicant claimed to fear harm and persecution in Pakistan from “jihadis”.

Delegate’s Decision

1. The Delegate was not satisfied that the Applicant was a person in respect of whom Australia had protection obligations under the Refugees Convention pursuant to s36(2)(a) of the Act or under the alternative criterion for a visa under the complementary grounds set out in s.36(2)(aa) of the Act. Its overall view was that the Applicant had manufactured his claims in order to establish the basis of a case to remain in Australia.

2. On 11 December 2013 the Applicant applied to the Tribunal for review of the Delegate’s refusal. He appeared at the Tribunal hearing with the assistance of an interpreter on 29 July 2014.

Tribunal’s Decision

1. The Tribunal had the same difficulty with the Applicant’s credibility as had the Delegate.

2. The Applicant claimed that he had been a diagnostic motor technician at Toyota Faisalabad Motors for some 20 years and had been forced by a jihadi organisation to work on motor vehicles used by them, which he believed were used in terrorist bombings and also required that he donate money to the jihadi organisation.

3. He claimed that he was abducted by the jihadis and tortured by them and forced to travel with and work for them on their motor vehicles. It was because of his fears of the jihadi organisation that he applied for and obtained a Visitor visa to travel to Australia in November 2011.  He claimed that he only remained in Australia for three weeks before returning to Pakistan because he was missing his wife and children.  After his return to Pakistan in December 2011 he claimed that the jihadis continued to ask him to work for them and started to demand money from him. He claimed that he was forced to travel with jihadis and forced to work on their motor vehicles and was abducted and tortured by the jihadis.

4. The Tribunal’s factual findings are set out in [8]-[26] of its Decision Record. In [9]-[12] the Tribunal considered the Applicant’s claim that he first came to Australia in November 2011 on a Visitor visa because of fear of the jihadis. The Tribunal analysed the evidence in that regard and did not accept that if that had truly been the reason for his first coming to Australia that he would have only remained for three weeks without making an application for a Protection visa and have gone back to Pakistan.

5. In [13]-[14] and [19] of the Decision Record the Tribunal considered and said that it disbelieved the Applicant’s claim that he sought to escape from the jihadis who had threatened to kill him if he did not cooperate by taking his family from Faisalabad to live in Lahore.

6. In [15]-[16] the Tribunal considered the Applicant’s evidence before it that, after having been abducted and tortured by the jihadis, he had complained to the police. The Tribunal then questioned the Applicant about that evidence and the Applicant stated that there had been a misunderstanding and that he had never in fact complained to the police about being abducted and tortured. The Tribunal then found that this evidence was inconsistent with what the Applicant had told the Delegate twice, being that after having been abducted and tortured he reported this to the police, but they would not take a formal complaint. The Tribunal found there was inconsistency in the Applicant’s evidence on this issue and it was not the result of any misunderstanding.

7. In [17]-[18] the Tribunal, while acknowledging that “extremist or militant groups may not act in a predictable or logical way”, found it implausible that these groups would engage a civilian such as the Applicant to work on vehicles to be used in their terrorist activities, and that such groups would be more likely to use their own members for such work. The Tribunal recorded that when it put this concern to the Applicant, he did not directly respond to the question. The Tribunal found that it was highly sceptical of the Applicant’s account of being used by terrorist groups to work on vehicles in secret locations and equip them with devices that would assist in a terrorist attack.

8. In the result, considered cumulatively, the Tribunal’s concerns about the Applicant’s credibility led it to find that he was not a witness of truth and that the account of events on which his protection claims were based was false. The Tribunal rejected as false the Applicant’s claims that he was ever contacted by jihadis to work on their vehicles or was abducted or tortured or threatened or asked for money. It found these claimed events were false. The Tribunal found that there was not a real chance the Applicant would suffer serious harm based on any Refugees Convention ground in Pakistan if he returned. The Tribunal preferred independent country information that indicated the Punjab area, where the Applicant resided, was relatively free of militant or terrorist attacks and accordingly found that the chance of him suffering serious harm because of militant violence in Pakistan was remote. It found that the Applicant did not hold a well-founded fear of persecution for any Refugees Convention reason. The Tribunal concluded that the Applicant did not meet the criterion set out in ss.36(2)(a) or 36(2)(aa) and affirmed the Delegate’s decision not to grant him a Protection visa.

9. The Tribunal further recorded in [22] of the Decision Record that the Applicant had produced to it medical records indicating that he had been treated in hospital in Australia for chest pains, burns sustained from an accident, lower back pain, and that he continued to take medication for palpitations relating to heart disease, having suffered a heart attack. Notwithstanding that evidence, the Tribunal recorded that it was satisfied that the Applicant could comprehend the Tribunal’s questions and the purpose of the hearing, and that he had had a meaningful opportunity to participate in the hearing, and that the medical evidence did not explain or excuse the Tribunal’s concerns about the Applicant’s credibility.

Application in this Court

1. On 4 September 2014 the Applicant filed an application in this Court under s.476 of the Act (Application) for review of the Tribunal’s decision.

2. At the hearing the Applicant appeared in person with the aid of an interpreter in the Urdu language. Mr Cleary of Counsel appeared for the First Respondent. The Applicant also relied on Submissions annexed to his Affidavit of 26 March 2015 to which I have had regard.

3. The Grounds of the Application are as follows:

   Ground 1

   The Tribunal made a procedural error by not taking into account information relevant to the applicant’s particular circumstances.

   Particulars

   The applicant states that threat he faced from jihadi’s was real. The statements the applicant made with regard to violence he suffered during his abduction, ransom money he paid to jihadi’s were real events. The Tribunal did not accept that applicant was used by jihadi’s for their terror activities. The applicant states the court did not accept his account of facts merely on the assumption that his evidence lacked credibility and that he is not a witness of truth.

   Ground 2

   The failure to understand or take into account the applicant’s claims that his life was at risk and continue to be risky manifest ignorance and lack of knowledge of the realities of life in Pakistan.

   Particulars

   The applicant states that it is naïve to believe that his life will be at no risk if he returns to Pakistan because the Tribunal assumes that the applicant faces no such threat on the basis that the applicant’s story is false.

   Ground 3

   The Tribunal’s conclusion that the applicant did not have a well-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 on the basis that his evidence was false.

   Ground 4

   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 was not afforded an unbiased hearing. Such pre-conceived views are displayed by the Member where evidence is simply regarded as not acceptable or not credible.

Consideration

1. I now turn to deal with each of the four grounds relied on by the Applicant.

2. Ground 1 alleges procedural error by not taking into account information relating to the Applicant’s particular circumstances. No “information” which it is said the Tribunal did not take into account is identified and the particulars to Ground 1 merely appear to challenge the Tribunal’s factual findings regarding the Applicant’s credibility. It is not for this Court to re-consider the factual findings relating to the Applicant’s credit and, in my view, Ground 1 must be rejected.

3. Ground 2 asserts that the Tribunal failed to understand or take into account the Applicant’s claims that his life was at risk and alleges that the Tribunal was naive and lacked knowledge of the realities of life in Pakistan. This again is not a matter for this Court. The Tribunal was the place and forum at which the Applicant had to make good his factual claims and it was the Tribunal’s task to review all aspects of the claims and come to a view in light of the material put forward and before it, as to whether the Applicant satisfied the criteria set out in s.36(2)(a) and 36(2)(aa) of the Act. The Applicant does not identify claims that the Applicant says the Tribunal failed to understand or take into account and Ground 2 is rejected.

4. Ground 3 also has to be rejected.  There does not appear to be any basis for the complaints made in this Ground. At [4]-[7] of the Decision Record the Tribunal sets out the relevant law applicable to the Applicant’s circumstances. There does not appear to me to be any misconstruction of the relevant statutory tests. Having regard to the factual findings of the Tribunal there does not appear to me to be any illogicality or irrationality in finding that the Applicant did not have a well-founded fear of persecution in Pakistan. There does not appear to me to be anything unreasonable about the Tribunal’s conclusion in the sense of lacking an evident and intelligible justification: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332. The Applicant does not point out and identify what other relevant information the Tribunal should have taken into account further to what it did take into account.

5. Ground 4 must also be rejected. It seems to allege actual bias in the form of pre-judgment. In my view there is no evidence of either actual or apprehended bias, or of pre-judgment or pre-conception in connection with the Tribunal.

6. As to actual bias in the form of pre-judgment, Gleeson CJ and Gummow J in Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 532 said as follows:

   The state of mind described as bias in the form of prejudgment is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented.

7. A finding of actual bias is a grave matter: Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 at 127 per Burchett J. As the New South Wales Court of Appeal said in South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16 at [97]:

   97. The appellant alleges that the Arbitrator displayed actual, not apprehended, bias. A party asserting actual bias on the part of a decision maker carries a heavy onus. The allegation must be “distinctly made and clearly proved”. Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 at [69] per Gleeson CJ and Gummow J and [127] per Kirby J; SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 at [36] per von Doussa J. A finding of actual bias should not be made lightly; cogent evidence is needed: Sun Zhan Qui v Minister for Immigration and Ethnic Affairs [1977] FCA 1488; (1997) 81 FCR 71 at 123 per Wilcox J; a finding of bias is a grave matter: ibid (at 127) per Burchett J.

8. The test of actual bias in the form of prejudgement requires an assessment of the state of mind of the judge in question: Michael Wilson & Partners Ltd v Nicholls & Ors (2011) 244 CLR 427 at 437-438 ([33]).

9. As to apprehension of bias, the test is whether a fair-minded lay observer might reasonably apprehend that the decision maker might not bring an impartial mind to the decision making process: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 344-345 ([6]). It is an objective test not requiring an assessment of the state of mind of the judge, as is necessary on an enquiry about actual bias: Michael Wilson & Partners v Nicholls (supra) at [32].

10. The Tribunal’s Decision Record on its written face does not indicate or demonstrate any prejudgment or actual bias or give rise to any reasonable apprehension of bias on the part of the Tribunal member: SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38].

11. Further and in any event, the Applicant did not tender in evidence a transcript of the Tribunal hearing as ordered by consent by Judge Nicholls on 15 October 2014 as follows:

    3.The applicant must file and serve any affidavit containing additional evidence to be relied upon, including any transcript of a Tribunal hearing, by 7 January 2015.

12. The onus is on the Applicant to establish actual or apprehended bias and he has failed to do so and I reject Ground 4.

13. I should finally deal with this issue. During his address, I asked Mr Cleary the significance of the medical evidence referred to in [22] of the Tribunal’s Decision Record and he referred me to the decision of the Full Court of the Federal Court in Minister for Immigration v SCAR (2003) 75 ALD 151 in which case a decision of the Refugee Review Tribunal was held to be invalid and jurisdictional error established, because, unknown to the Refugee Review Tribunal, the applicant before that Tribunal was not in a fit state to represent himself at the hearing and so had not been given a “real and meaningful” invitation to put his case. Mr Cleary suggested, and I accept, that [22] of the Decision Record was directed to dealing with any suggestion that the Applicant here was not able to meaningfully participate in the hearing and the Tribunal expressed its view at [22] that it was satisfied that the Applicant could comprehend its questions and the purpose of the hearing, and that he had a meaningful opportunity to participate in the hearing. He bears the onus of establishing that he was unfit to meaningfully take part in the Tribunal hearing of 29 July 2014: see Flick J in SZMSF v Minister for Immigration [2010] FCA 585 at [17] and Gilmour J in SZMSA v Minister for Immigration [2010] FCA 345 at [32] citing as correct paragraph [108] of the judgment below. In my view, he has failed to do so.

14. Further, after Mr Cleary had finished his address, the Applicant in reply appeared to suggest that he was too sick to participate in the hearing being conducted before this Court. It is sufficient for me to simply record that prior to this suggestion the Applicant appeared to be giving instructions to or conversing with his interpreter, and the interpreter appeared to be continually interpreting what was being said in English, including Mr Cleary’s address, throughout the hearing, and that the Applicant appeared to me to be meaningfully participating in the hearing and understanding what was happening. Indeed, at one point during the hearing I sought to check with the interpreter if she was interpreting to the Applicant the submissions of Mr Cleary as they were being made, and the following exchange occurred at TP 19.37-20.3:

    HIS HONOUR:   Madam Interpreter, you’re explaining as Mr Cleary makes his submissions, are you?

    THE INTERPRETER:   Yes.

    HIS HONOUR:   You’re satisfied that he’s understanding what you’re telling him and what Mr Cleary is saying?

    THE INTERPRETER:   It’s old news.  I know everything.

    HIS HONOUR:   I’m sorry?

    THE INTERPRETER:   This is old news.  I know everything that is being discussed.

    HIS HONOUR:   Old news.  Yes.  Thank you.  Yes.  All right.

15. In my view the Applicant has failed to establish any jurisdictional error or any breach of the rules of natural justice or any actual bias or apprehension of bias in connection with the Tribunal and the Application must be dismissed with costs.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Dowdy

Date: 23 August 2016