SZVHO v Minister for Immigration

[2015] FCCA 3273

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVHO v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 3273

Catchwords:
MIGRATION – Review of decision by Refugee Review Tribunal (Tribunal) – whether the Tribunal was entitled to make an adverse credibility finding before it considered whether to accept apparently corroborative evidence – whether the Tribunal made adverse credibility findings without giving the applicant notice it might make such findings – whether the Tribunal is under a duty to make investigations in Pakistan in relation to the authenticity of apparently corroborative documents – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), s.424A

Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 259 ALR 429

Minister for Immigration and Citizenship v SZNSP [2010] FCAFC 50; (2010) 184 FCR 184

WAIJ v Minister for Immigration and Cultural and Indigenous Affairs [2004] FCAFC 74

Applicant: SZVHO

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2892 of 2014

Judgment of: Judge Manousaridis

Hearing date: 1 December 2015

Date of Last Submission: 24 November 2015

Delivered at: Sydney

Delivered on: 11 December 2015

REPRESENTATION

Applicant in person assisted by an interpreter.

Solicitors for the Respondents: Ms H Musgrove of
Sparke Helmore Lawyers

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2892 of 2014

SZVHO

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant, a citizen of Pakistan, seeks judicial review of the decision of the second respondent (Tribunal) affirming a decision of a delegate of the first respondent (Minister) not to grant the applicant a Protection (Class XA) visa (Protection visa). Before I turn to the grounds on which the applicant seeks judicial review, it will be necessary to set out the applicant’s claims, and the reasons for which the Tribunal did not accept those claims.

Applicant’s claims for protection

1. In a statement that formed part of his application for a Protection visa, the applicant claimed to fear harm in Pakistan on the basis of his religion.[1] In that statement, the applicant claimed he is from a Sunni family and has been a practising Muslim since birth.[2] One of the applicant’s very good friends, S, was a Shi’a and the applicant used to attend Majlises with S in the month of Muharram. The applicant learned more about the Shi’a sect and he found teachings of the sect “were overwhelmingly true to my nature”.[3] For that reason, the applicant “became closer to Shia sect and Shia people”.[4]

   [1] CB50-51

   [2] CB50, [4]

   [3] CB50, [8]

   [4] CB50, [9]

2. After he married, the applicant convinced his wife “to follow the Shia theme” and to accompany him to Shia meetings. The applicant’s wife also accepted the “Shia Ideology”, and adhered to its principles and they began to live their life together “according to Shia belief”.[5] Slowly, the applicant’s brothers and sisters came to know of the applicant’s and his wife’s conversion and advised the applicant and his wife to keep their beliefs a secret as “there could be some extremists who could harm” them.[6]

   [5] CB50, [11]

   [6] CB50, [12]-[15]

3. The applicant joined a Shia organisation called Imamia Students Organisation (ISO) and began to participate in Majlises and rallies. The applicant was against terrorist organisations that were killing innocent minority Shi’as.[7] At this time, these terrorist groups came to know about the applicant and his belief in the “Shia ideology”. The applicant claims he was involved in three incidents that occurred because of his conversion.

   a)The first incident occurred at the applicant’s home. One day unknown people, whom the applicant believed were part of a terrorist organisation, forced themselves into the applicant’s house and tortured him and his family. The intruders yelled at the applicant that they would kill him because of his conversion and threatened that he and his family would be killed if he participated in any rally against them. Frightened for his welfare the applicant reported the incident to the Police, however they could not act upon his report. The applicant submitted what purports to be a “First Information Report” of the incident.[8]

   b)The second incident was the filing of a false information report by a “so called Muslim preacher” that alleged the applicant had committed blasphemy. That application, however, was dismissed. The applicant supported that claim with what purports to be the false first information report.[9]

   c)The third incident occurred on 21 November 2012 as a consequence of the applicant’s having been acquitted of the blasphemy charge. Members “of the terrorist organisation became furious” and attacked the applicant when he was riding a motorbike with a friend returning from a Shi’a Majlis. The applicant’s friend, who was S, was shot and died on the spot. The applicant reported the matter to police.[10] The applicant supports this claim with a purported first information report dated,[11] and what purports to be a post-mortem report.[12]

   [7] CB50, [17]

   [8] CB98-99

   [9] CB100

   [10] CB50-51, [22]-[23]

   [11] CB101-102

   [12] CB92-97

4. As a result of these incidents, the applicant believed his life was in danger; so he left Pakistan.

Tribunal’s reasons

1. The Tribunal was not satisfied the applicant was a truthful witness or that he had given a truthful account of his reasons for leaving Pakistan and seeking Australia’s protection.[13] The Tribunal did not accept the applicant converted from the Sunni branch of Islam to the Shi’a branch of Islam, or that he was ever harmed as a result;[14] the Tribunal considered the applicant left Pakistan “for reasons entirely unrelated to those he has put forward in his Protection visa application”.[15]

   [13] CB198, [16]

   [14] CB198-199, [16]

   [15] CB204, [28]

2. The Tribunal relied on a number of matters for reaching this conclusion.

   a)The Tribunal found the reasons the applicant gave for deciding to convert to the Shi’a branch “to be vague and unconvincing”,[16] and that the applicant had “considerable difficulty in explaining why he converted to the Shia sect of Islam”.[17]

   b)The Tribunal found unpersuasive the applicant’s evidence of what he told his wife about his conversion and her response.[18] The applicant’s evidence before the Tribunal was that he informed his wife he had converted four to five months after he had converted. When asked what his wife said in response, the applicant said “what would she say?” and, in response to a further question from the Tribunal, the applicant said “she was not concerned”.[19] The Tribunal did not accept that the applicant’s stating to the Tribunal “what would she say?” was credible, and his evidence in that regard was “indicative of someone who had not in fact experienced these events”.[20]

   c)The applicant’s religious practices after he entered Australia were inconsistent with his claims. The applicant had attended a Shi’a mosque only once.[21]

   d)The applicant’s evidence about his involvement with ISO was unpersuasive.[22] The applicant did not have any knowledge of the group’s aims or of any of the specific incidents that inspired rallies.[23]

   e)The applicant’s account of the third incident was inconsistent with the first information report the applicant submitted. That report states there were four unknown persons who came after him and his friend, whereas, before the delegate, the applicant said there were two persons on bikes ,[24] and before the Tribunal, the applicant said there were two people on bikes but maybe one or two came after, but he could not say because he ran away;[25] and the first information report recorded the incident occurred at 10.30 pm whereas, before the Tribunal, the applicant said it occurred at 9.30 pm.[26]

   [16] CB199, [17]

   [17] CB201, [21]

   [18] CB200-201, [21]

   [19] CB200, [19]

   [20] CB201, [21]

   [21] CB201, [22]

   [22] CB202, [24]

   [23] CB202, [24]

   [24] CB202, [25]

   [25] CB202, [25]

   [26] CB203, [25]

3. Given that, for these reasons, the Tribunal did not accept that the applicant left Pakistan because he feared harm from persons who opposed his conversion, and that the Tribunal found the applicant left Pakistan for reasons entirely unrelated to those he has put forward in his Protection visa application, the Tribunal did not accept that the documents the applicant provided were genuine or that they contained truthful information.[27] The Tribunal also relied on country information to the effect that fraudulent documentation is readily available and easy to obtain in Pakistan.[28]

   [27] CB204, [28]

   [28] CB204, [28]

Grounds of application

1. The application for review contains four grounds of review. In addition, at the hearing, the applicant, who is not legally represented, stated an additional ground. I will first refer to the ground stated by the applicant at the hearing before me.

Ground raised at hearing

1. The applicant submitted that the Tribunal did not attempt to verify the authenticity of the documents on which the applicant relied, and which the Tribunal did not accept were genuine. The applicant submitted that the Tribunal should have made inquiries in Pakistan.

2. The Tribunal has no general duty to investigate matters that are raised by an applicant for a review. At most, the Tribunal has a duty to inquire into a critical fact, the existence of which may be easily ascertained.[29] It may be accepted that the authenticity of the documents on which the applicant relied was a critical fact or set of facts. It cannot be said, however, there was any line of inquiry available to the Tribunal which would have enabled the Tribunal easily to ascertain whether the documents were in fact authentic. This part of the applicant’s case, therefore, fails.

   [29] Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 259 ALR 429

Ground 1 of grounds of application

1. The first ground stated in the application for review is as follows:

   The Tribunal constructively failed to exercise its jurisdiction;

   Particulars:

   The applicant provided documents to the Tribunal to corroborate his claims. The Tribunal failed to engage in an active intellectual process of these documents. The Tribunal ultimately gave the documents no weight on the basis of credit findings. It was an error for the Tribunal to place no weight on the documents without engaging to [sic] the contents of these documents. It was an error for the Tribunal to assess the applicant’s credit without first assessing whether the substance of the documents corroborated his claims.

2. The gist of this ground is that the Tribunal made a jurisdictional error by making an adverse credibility finding before it considered the authenticity of the documents on which the applicant relied.

3. It has been held that the Tribunal may make a jurisdictional error if, having made adverse credibility findings against an applicant, the Tribunal decides not to consider evidence that corroborates the applicant’s claims; and the Tribunal will make a jurisdictional error in those circumstances unless the applicant’s claims have been so comprehensively discredited by findings of dishonesty or untruthfulness that the corroborative evidence is negated.[30] In other words, it is not:[31]

   open to the Tribunal to state that it is unnecessary for it to consider material corroborative of an applicant’s claims merely because it considers it unlikely that the events described by an applicant occurred. In such a circumstance the Tribunal would be bound to have regard to the corroborative material before attempting to reach a conclusion on the applicant’s credibility. Failure to do so would provide a determination not carried out according to law and the decision would be affected by jurisdictional error.

   [30] WAIJ v Minister for Immigration and Cultural and Indigenous Affairs [2004] FCAFC 74 at [27] (Lee and Moore JJ)

   [31] WAIJ v Minister for Immigration and Cultural and Indigenous Affairs [2004] FCAFC 74 at [27] (Lee and Moore JJ)

4. On the other hand, the Full Federal Court in Minister for Immigration and Citizenship v SZNSP held it is open to the Tribunal to reject corroborative evidence because the Tribunal made adverse credibility findings against an applicant, or an applicant’s claims, provided the Tribunal considered the corroborative evidence.[32] In SZNSP the Tribunal found the applicant had fabricated her claim of fear of persecution and, because of the adverse credibility findings it made of the applicant, the Tribunal decided not to give any weight to a witness statement that apparently corroborated the applicant’s claims. The words the Tribunal used were: “Given the adverse credibility finding, the Tribunal does not give weight to the document”.[33] The Full Federal Court said:[34]

   Thus, consistently with Applicant S20/2002 [2003] HCA 30; 198 ALR 59 it was open to the RRT to assess the credit of the first respondent and then, in the light of that assessment, consider what weight should be given to the witness statement. This was the process followed by the RRT which it described in the sentence “Given the adverse credibility finding, the Tribunal does not give weight to the document”. Although expressed in the most cryptic terms, this statement shows that the RRT made an assessment of the value of the witness statement and then considered its effect in the light of the view it had formed to that point about the credibility of the first respondent.

   [32] [2010] FCAFC 50; (2010) 184 FCR 184 (North, Lander and Katzmann JJ)

   [33] [2010] FCAFC 50; (2010) 184 FCR 184 at [13]

   [34] [2010] FCAFC 50; (2010) 184 FCR 184 at [33] (North and Lander JJ; Katzmann J agreeing at [42])

5. In the case before me, the Tribunal applied the same approach as the Tribunal did in SZNSP. In addition, however, the Tribunal relied on country information to the effect that fraudulent documentation is readily available and easy to obtain in Pakistan.

6. As with all grounds, this ground was interpreted to the applicant at the hearing before me, and I invited him to make submissions in relation to that ground. The applicant said that what he said about the ground I have already identified applied to ground 1 of the grounds of application.

7. Ground 1 of the grounds of application, therefore, fails.

Ground 2 of grounds of application

1. The second ground stated in the application is:

   The Refugee Review Tribunal denied the Applicant procedural fairness by reaching adverse conclusions that certain aspects of his claims were implausible, being conclusions that were not obviously open on the known materials, without giving the applicant the opportunity to be heard in respect of those matters.

2. After this ground was interpreted to the applicant, the applicant said he could not understand it. That is not surprising. It appears to have been drafted by a lawyer or taken from material that was drafted by a lawyer.

3. The ground is unparticularised and, therefore, does not engage with the proceeding before the Tribunal. The Tribunal noted that the delegate had accepted the applicant had converted from the Sunni to the Shi’a branches of Islam, but, at the commencement of the hearing it advised the applicant that the Tribunal may reach a different view on this matter.[35] The Tribunal also noted that that towards the conclusion of the hearing, it informed the applicant the Tribunal had found much of the applicant’s evidence to be unpersuasive and unconvincing.[36] Further, the Tribunal noted it had discussed with the applicant that fraudulent documentation is freely available and easy to obtain in Pakistan.

   [35] CB198, [16]

   [36] CB198, [16]

4. There is nothing in the material before me that is capable of suggesting the Tribunal did not give the applicant a reasonable opportunity to be heard on the matters which the Tribunal found dispositive; and the conclusions the Tribunal reached were reasonably open to the Tribunal for the reasons it gave.

5. Ground 2 of the grounds of application, therefore, fails.

Ground 3 of grounds of application

1. The third ground stated in the application is:

   The Tribunal’s decision was unjust and made without taking into account the full gravity of the applicant’s circumstances and consequences of claims. The Tribunal did not consider the applicants who had been under immense and intimidating pressure from radicals [sic] Sunnis.

2. The only submission the applicant made in relation to this ground is that his wife was pregnant at the time he left Pakistan and that she gave birth two weeks after he left Pakistan. That does not disclose any jurisdictional error.

3. As to the ground stated in the application, it assumes as true the factual claims the applicant made before the Tribunal which the Tribunal did not accept. Given the Tribunal did not accept the applicant’s claims, there were no grave circumstances that applied to the applicant which the Tribunal was obliged to take into account when considering whether the applicant was entitled to a Protection visa. It was reasonably open to the Tribunal not to accept the applicant’s claims for the reasons it gave.

Ground 4 of the grounds of application

1. The fourth ground of the application is:

   My point is that despite having attended in the hearing, it became imperative that, before the Tribunal member made up its mind to dismiss the application, such information was required to be sent to me written to make comments, in order to fully compliance of s424A.

2. This ground appears to claim the Tribunal failed to comply with s.424A of the Migration Act 1958 (Cth). The only submission the applicant made in relation to this ground was that the Tribunal followed the decision made “by immigration”, by which I understand the applicant intended to mean the delegate.

3. The ground does not identify the information particulars of which it is alleged the Tribunal was required to give to the applicant. No such information readily suggests itself from the material that is before me. The ground, therefore, fails. As for the submission the applicant made at the hearing, I do not accept the Tribunal simply followed the delegate’s decision. As I have already indicated, the Tribunal did not share the delegate’s view that the applicant had converted as he had claimed. Further, the Tribunal gave active consideration to the applicant’s claims. Unfortunately for the applicant, the Tribunal did not accept the applicant was a witness of truth and, for that reason, did not accept the applicant was entitled to a Protection visa.

Other matters

1. At the hearing, the applicant said he could ask his brother to provide further documents. I informed the applicant that his being able to provide documents would not mean the Tribunal made any jurisdictional error. The applicant then said he wanted the Court to send the matter back to the Tribunal where the applicant would provide to the Tribunal additional documents.

2. These matters do not disclose any ground for setting aside the Tribunal’s decision. That the applicant may be able to provide additional evidence in support of his claim is irrelevant to whether the Tribunal made any jurisdictional error.

Conclusion and disposition

1. The applicant has not established any of the grounds stated in his application or the ground the applicant raised at the hearing before me. I propose, therefore, to dismiss the application.

2. At the hearing, the applicant submitted that he was not aware that he might be required to pay the Minister’s costs. I took that to be a submission about the order for costs I should make if I were to dismiss the application. The Minister submitted that the applicant would have been aware from the information provided to the applicant on the first court date that he might be liable for costs if he were not to succeed on his application. In any event, the Minister submitted that costs should follow the event.

1. In my opinion, that the applicant may have been unaware that he might be liable to pay the Minister’s costs if the applicant were to lose is no reason for not making an order that the applicant pay the Minister’s costs. The applicant does not suggest that his belief was in any way induced by the acts or omissions of the Minister. I propose, therefore, to order that the applicant pay the first respondent’s costs.

2. I will also order that the Administrative Appeals Tribunal be substituted for the Tribunal as the second respondent.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date: 11 December 2015