SZVHW v Minister for Immigration and Border Protection

[2016] FCA 187

FEDERAL COURT OF AUSTRALIA

SZVHW v Minister for Immigration and Border Protection [2016] FCA 187

Appeal from:	SZVHW v Minister for Immigration and Border Protection [2015] FCCA 3055
File number:	NSD 1385 of 2015
Judge:	MARKOVIC J
Date of judgment:	4 March 2016
Legislation:	Migration Act 1958 (Cth) ss 65, 476
Cases cited:	Randhawa v Minister for Immigration (1994) 52 FCR 437
Date of hearing:	17 February 2016
Registry:	New South Wales
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	No Catchwords
Number of paragraphs:	43
Counsel for the Appellant:	The Appellant appeared in person
Solicitor for the Respondents:	Mr A Markus, Australian Government Solicitor

ORDERS

NSD 1385 of 2015

BETWEEN:

SZVHW

Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:	MARKOVIC J
DATE OF ORDER:	4 MARCH 2016

THE COURT ORDERS THAT:

1.The appeal is dismissed.

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

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

MARKOVIC J:

1. This is an appeal from a judgment of the Federal Circuit Court of Australia (Federal Circuit Court) delivered on 30 October 2015 dismissing an application for judicial review pursuant to s 476 of the Migration Act 1958 (Cth) (the Act) of a decision of the second respondent (the Tribunal): see SZVHW v Minister for Immigration & Anor [2015] FCCA 3055 (SZVHW).  The Tribunal had affirmed a decision of a delegate of the first respondent (the Minister) to refuse to grant the appellant a Protection (Class XA) visa.

   BACKGROUND

2. The appellant is a citizen of Pakistan.  He first arrived in Australia on a Visitor visa in September 2008.  He departed Australia in December 2008 and returned on 18 March 2013 on a further Visitor visa. 

3. On 29 April 2013 the appellant lodged an application for a Protection (Class XA) visa.  The appellant claims to be a Sunni to Shia Muslim convert from the Jhelum district in Punjab Province, Pakistan.  The appellant also claims to be an office bearer of a Shia organisation, Tehrik-e-Jafaria.  He claims that since his appointment he has been beaten and abused in his town by members of a banned organisation known as Sipah-e-Sahaba, an anti-Shia terrorist organisation, who regrouped under a different name, Ahle-Sunnat-Wal-Jamaat. 

4. The appellant claims that on two different occasions, 30 July 2009 and 9 August 2009, he was confronted by anti-Shia terrorists who threatened to kill him.  He also claims that he was, and still is, on a target list maintained by Sunni extremists because he is an office bearer in Tehrik-e-Jafaria and because he converted from the Sunni to Shia sect of Islam.  The appellant claims that he has received threatening phone calls and written messages and also claimed that in 2011, in his absence, his office was attacked. 

5. On 26 September 2013, the appellant attended an interview with a delegate of the Minister.  On 13 March 2014, the Minister’s delegate refused the appellant’s application for a Protection (Class XA) visa.

6. On 31 March 2014, the appellant applied to the Tribunal for review of the delegate’s decision.  He was assisted by a migration agent who submitted written submissions to the Tribunal dated 25 September 2014 and who accompanied the appellant to the Tribunal hearing held on 1 October 2014.

7. The appellant also provided the following documents to the Tribunal in support of his application:

   (1)a letter dated 30 January 2009 from the president of the Tehrik-e-Jafaria in the Jhelum district stating that the appellant had been promoted to the position of general secretary of that organisation;

   (2)two First Information Reports dated 30 July 2009 and 9 August 2009 respectively which referred to an attack by unknown persons whilst the appellant was travelling on his motorcycle and an attack after a wedding during which the appellant was attacked with an iron bar after terrorists forced him to stop his car; and

   (3)an untranslated newspaper clipping. 

8. On 2 October 2014 the Tribunal affirmed the decision not to grant the appellant a Protection (Class XA) visa.

   THE TRIBUNAL DECISION

9. The Tribunal was not satisfied that the appellant was a truthful witness or that he had given a truthful account of his reasons for leaving Pakistan and seeking Australia’s protection.  The Tribunal did not accept that the appellant converted from the Sunni branch of Islam to the Shia branch of Islam or that he was ever harmed as a result.  The Tribunal reached these conclusions for a number of reasons including the following:

   (1)it found the appellant’s evidence in relation to his conversion from the Sunni to Shia branch of Islam to be unpersuasive.  The Tribunal considered that the appellant had considerable difficulty explaining what happened on the day he claimed he had converted, 22 January 2009, and why he converted at that time.  Having been asked a number of times about the significance of the date, 22 January 2009, the appellant finally stated that was the day he told his friends and community that he had converted;

   (2)the Tribunal accepted that the province in which the appellant resided in Pakistan, Punjab, was relatively peaceful and there was limited evidence of violence against Shias, particularly in 2009 when the appellant claimed to have converted.  However, the Tribunal did not accept that, if the appellant had been attending meetings and had been involved with Shias for several years, he would not have known that Shias had been targeted in Pakistan, that Sunni extremist groups had been operating throughout Pakistan and that his conversion may be potentially dangerous;

   (3)the Tribunal’s concerns in relation to the appellant’s evidence concerning his conversion were increased by his evidence regarding his involvement with Tehrik-e-Jafaria.  The Tribunal found that the appellant gave vague and unpersuasive evidence in relation to his involvement in the group and that he was unable to explain the aims or objectives of the group.  The Tribunal accepted that the group may essentially be a social group in the appellant’s village.  However, given he claimed he was the general secretary of the group, the Tribunal was of the view that, if the appellant had been genuinely involved in the organisation, he would have been able to exhibit greater understanding of its aims, objectives and purposes than he was able to during the hearing;

   (4)the Tribunal found the appellant’s evidence in relation to the attacks on his office to be vague and unpersuasive and did not accept that the appellant would be unable to recall the date on which his office was attacked, even if he was not present at the time.  The Tribunal also formed the view that, despite his claims of having been attacked in 2009 with iron bars and a gun and having been the subject of further attacks, the fact that the appellant remained in Pakistan for some years after those incidents was adverse to his claims. 

10. Having considered all of the evidence the Tribunal concluded that the appellant had manufactured his claims and did not accept that the appellant had converted to the Shia sect of Islam in 2009, that he had been in the process of converting for several years, that he subsequently joined Tehrik-e-Jafaria, that he was targeted in July or August 2009, that he was threatened on the telephone or that his office was attacked by Sunni extremists.  It followed that the Tribunal did not accept that the appellant left Pakistan because he feared harm from persons who opposed his conversion.  The Tribunal found that the appellant left Pakistan for reasons entirely unrelated to those he put forward in his Protection visa application.

11. The Tribunal did not accept that the documents provided by the appellant were genuine or that they contained truthful information.  It noted that fraudulent documentation was readily available and easy to obtain in Pakistan.

12. In reaching its conclusions the Tribunal had regard to the appellant’s representative’s submissions both before and during the hearing.  It also had regard to the submission that the appellant may have had difficulties responding to the delegate’s and the Tribunal’s questions due to problems with the interpreting before the delegate and his educational level and IQ.  The Tribunal did not draw any adverse findings in relation to the appellant’s evidence during the interview with the delegate.  The Tribunal was satisfied that the appellant had been given considerable opportunity to elaborate on his claims during the Tribunal hearing through an interpreter about whom neither he nor his representative raised any concerns.  The Tribunal was not satisfied that the problematic nature of the appellant’s evidence was due to his level of education or IQ but rather that it was due to the fact that his claims had been fabricated.

13. The Tribunal then considered whether the appellant could be granted a visa based on the complementary protection criterion.  In doing so, it referred to its earlier findings and noted that the appellant had not raised any other reasons, including any claims relating to the general security situation in Pakistan.  The Tribunal accepted that there is generalised violence in Pakistan and that the security situation remains unstable.  However, it was not satisfied that there was a real risk that the appellant would suffer significant harm due to the violence and security problems that exist in Pakistan.  On that basis the Tribunal found that the appellant did not meet the criterion for complementary protection.

    PROCEEDINGS IN THE FEDERAL CIRCUIT COURT

14. On 20 October 2014 the appellant filed an application seeking judicial review of the Tribunal’s decision in the Federal Circuit Court.  That application raised four grounds of review.  The primary judge delivered judgment and made orders on 30 October 2015 dismissing the application and ordering the appellant to pay the Minister’s costs. 

15. The primary judge dealt with each of the grounds raised by the appellant in his application as well as oral submissions made by the appellant at the hearing. 

16. In ground 1, the appellant alleged that the Tribunal had made a “procedural error by not taking into account information relevant to the applicant’s particular circumstances”.  The ground was particularised by reference to the fact that the Tribunal did not accept that the appellant was a convert from the Sunni to Shia sects of Islam and that he was involved in Tehrik-e-Jafaria and that the Tribunal rejected the evidence that supported those claims.  The primary judge rejected ground 1.  The primary judge found that the Tribunal’s reasons disclosed that it considered all of the appellant’s claims, the evidence, including the documentary evidence provided to it, the appellant’s submissions and those of his agent.  The primary judge found that the Tribunal comprehensively rejected the credibility of the appellant’s central claims and of the events that he claimed had occurred in Pakistan.  Having done that the primary judge found that the Tribunal’s findings in relation to the purportedly corroborative evidence provided to it were open to it: SZVHW at [32].

17. Although the appellant did not take express issue with the fact that the Tribunal did not take up his representative’s offer to obtain further information in relation to the untranslated newspaper report provided to the Tribunal, the primary judge gave the parties the opportunity to make submissions on that matter and considered whether it raised any issues of concern.  Having done so, the primary judge found that the Tribunal’s exercise of discretion was not unreasonable given that the appellant’s evidence to the Tribunal was inconsistent with the alleged content of the newspaper article: SZVHW at [34].

18. The second ground raised by the appellant was that the “failure to understand or take into account [his] claims that his life was at risk and continue to be risky manifest ignorance and lack of knowledge of the realities in life in Pakistan”.  This ground was particularised by reference to the Tribunal’s findings in relation to the appellant’s evidence about the significance of 22 January 2009 and the appellant’s membership of Tehrik-e-Jafaria and the Tribunal’s finding that the appellant faces no threat or risk of harm because it found his claims had been fabricated and he was not a credible witness. 

19. The primary judge also rejected this ground.  She found that the Tribunal’s credibility findings were open to it on the material before it for the reasons which it gave and that, to the extent the ground takes issue with that reasoning, it does not establish jurisdictional error.  The primary judge also noted that insofar as the appellant sought in his oral submissions to rely on changes in the situation in Pakistan since the time of the Tribunal decision, such matters were not, of themselves, indicative of jurisdictional error.  The primary judge observed that if the appellant says there has been a change in his circumstances that may be an issue he may raise with the Minister but it does not demonstrate jurisdictional error: SZVHW at [36] to [38].

20. In his third ground the appellant alleged that the Tribunal’s conclusion that he 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”.  The ground is particularised by reference to the Tribunal’s finding that the appellant will not suffer serious harm in Pakistan on the basis that his evidence was fabricated and/or that fraudulent documentation could be easily obtained. 

21. The primary judge rejected this ground finding that the Tribunal’s decision was not one that no rational or illogical decision maker could have made on the same evidence in the sense considered in Minister for Immigration & Citizenship v SZMDS & Anor (2010) 240 CLR 611. The primary judge also found that there was nothing in the material before her to support any claim that the Tribunal misunderstood or misconstrued the Refugee Convention test. To the extent that the appellant complained that the Tribunal failed to take into account relevant information the primary judge found that such a complaint was not supported by the Tribunal’s reasons. To the extent that the appellant was complaining that he provided documents which were not regarded as sufficient to support or establish his claims, the primary judge noted that the weight to be given to items of evidence is a matter for the Tribunal.

22. The primary judge also rejected the appellant’s oral submission that the Tribunal had not given him a “complete opportunity” to make submissions or put evidence before it noting that the appellant appeared and gave evidence and was accompanied by his representative who made pre hearing submissions and oral submissions to the Tribunal: SZVHW at [43].

23. By ground 4 the appellant alleged that he was not afforded natural justice. The particulars to this ground allege bias on the part of the Tribunal in that the Tribunal approached the review with “pre-conceived beliefs”. The primary judge rejected this ground finding that neither an allegation of actual or apprehended bias was made out on the material before the Court. Insofar as the appellant took issue with the fact that he was asked questions by the Tribunal and answered them, the primary judge found that was not indicative of actual or apprehended bias but was consistent with the Tribunal’s obligations under the Act. The primary judge also addressed the appellant’s oral submissions which took issue with the extent of the opportunity afforded to his agent to make submissions at the Tribunal hearing. The primary judge observed that the agent made pre-hearing submissions and noted that the appellant conceded that his agent was given an opportunity to address the Tribunal at the end of the hearing: SZVHW at [45] to [48].

24. The appellant also made a number of oral submissions at the hearing which attacked the Tribunal’s findings of fact.  The primary judge addressed those submissions, rejecting them.  She noted that, to the extent that the appellant was seeking merits review, that was not available in the Federal Circuit Court.  The primary judge rejected the appellant’s submission that it was the Tribunal’s task to prove that his claims were not true and that his documents were not genuine.  The primary judge pointed out that it was a matter for the appellant to advance evidence in support of his claim and it was the Tribunal’s task to decide whether the claim was made out.  The primary judge also rejected the appellant’s submission that the Tribunal failed to consider any aspect of his claims: SZVHW at [26] to [30].

    THE NOTICE OF APPEAL

25. In his notice of appeal filed on 11 November 2015, the appellant raises the following grounds:

    1.The Court did not afford the applicant procedural fairness by failing to take into account information relevant to the applicant’s particular circumstances.

    2.The applicant was not afforded natural justice.

    3.Failure of the Court to properly assess the law resulted in the appellant not being given a reasonable opportunity to be heard.

    THE PARTIES’ SUBMISSIONS

26. The appellant did not file any written submissions in support of his grounds of appeal.  When invited to make submissions at the hearing the appellant asked the Court to remit the matter back to the Tribunal for rehearing.  He said that he did not think that the Tribunal had properly considered his matter, that the Tribunal had found his refugee claims to be fake but it could not prove that they were not genuine and that there is a real threat and danger to his life if he returns to Pakistan.

27. The Minister filed written submissions.  He submits that grounds 1 and 2 of the notice of appeal have no merit. The Minister contends that, insofar as the appellant complains that he was not afforded procedural fairness by the Court below, the appellant was given the opportunity to file an amended application, affidavit evidence and written submissions prior to the hearing but did not take up that opportunity.  The appellant appeared at the hearing before the primary judge where he was afforded a further opportunity to make submissions in support of his grounds.  The Minister points out that the judgment of the primary judge records that the appellant made a number of oral submissions which the primary judge addressed.  The Minister submits that there was no information regarding the “the applicant’s particular circumstances” that required anything beyond a fair hearing which is what the appellant was afforded by the primary judge.

28. The Minister submits that insofar as the appellant complains that he was not afforded natural justice by the Tribunal, then for the same reasons given by the primary judge at [44] to [48] of her judgment in response to ground 4 of the application filed in Federal Circuit Court, that complaint has no merit. 

29. The Minister also submits that ground 3 has no merit. There is nothing in the reasons of the Court below indicative of a misunderstanding or misapplication of the relevant provisions within the Act and, in the Minister’s submission, the appellant’s allegation that he was denied the opportunity to be heard on this basis is baseless.

30. The solicitor for the Minister addressed the Court in relation to the oral submissions made by the appellant.  He submitted that in order to succeed on his appeal, the appellant needs to show an appealable error in the judgment of the primary judge.  Insofar as the appellant asserted that his application was not subject to proper consideration by the Tribunal, that is a general assertion made without particulars that does not relate to the judgment the subject of this appeal.

1. In response to the appellant’s assertion that his claims had not been believed by the Tribunal, the solicitor for the Minister noted that was correct and submitted that, insofar as the appellant had asserted that the Tribunal could not prove that the claims were not genuine, the primary judge had addressed such a claim made before her in her judgment. The solicitor for the Minister submitted that the primary judge found that the argument misconceived the nature of the power exercised by the Tribunal. He referred to s 65 of the Act which requires the decision maker to be “satisfied” that an applicant has met the relevant criteria for the grant of the visa. The solicitor for the Minister submitted that it was the visa applicant who had to provide the evidence that enabled the decision maker to reach the necessary level of satisfaction and that the merits of the case, including the weight to be given to evidence and credit issues, are a matter for the Tribunal. The Tribunal does not need to have rebutting evidence to find that a claim is not made out.

2. Insofar as the appellant claims that there is a threat and danger to his life if he returns to Pakistan, the solicitor for the Minister submitted that is an attempt to challenge the merits of the Tribunal decision.

3. The Minister submits that the grounds of appeal included in the notice of appeal and the additional claims and submissions made orally at the hearing do not identify any appealable error in the judgment of the Court below or any jurisdictional error in the decision of the Tribunal.  He submits that the primary judge considered the appellant’s grounds and found that they did not reveal any error and that the primary judge was correct to find no jurisdictional error in the decision of the Tribunal.

   CONSIDERATION

4. In my opinion, the Minister’s submissions should be accepted. 

5. In relation to ground 1, there was no failure by the Court below to afford the appellant procedural fairness by failing to take into account “information relevant to the applicant’s particular circumstances”.  As the Minister has submitted, there was no information or evidence about the “applicant’s particular circumstances” that required anything beyond a fair hearing.  The appellant was afforded a fair hearing by the primary judge. 

6. It is also relevant to note that prior to the hearing and pursuant to orders made by the Court below, the appellant was given an opportunity to file an amended application, affidavit evidence and written submissions.  The appellant did not take up that opportunity.  At the hearing the appellant was given the opportunity to address his grounds in oral submissions, which he did: SZVHW at [25]. It is evident from the judgment of the primary judge that those oral submissions were considered and addressed by her.

7. In relation to ground 2 it cannot be said that the appellant was not afforded natural justice.  Insofar as this ground might refer to a denial of natural justice in the Court below, I refer to and repeat the matters set out in the preceding paragraph.  Insofar as the appellant alleges a denial of natural justice by the Tribunal I note this ground was raised by the appellant as ground 4 of his application in the Court below.  The primary judge addressed and rejected this ground at [44] to [48] of her judgment.  I agree with the approach of the primary judge.  There is, as found by the primary judge, no merit in the complaint that the appellant was not afforded natural justice by the Tribunal.

8. In relation to ground 3 there is nothing in the judgment of the primary judge to indicate that she misunderstood or misapplied the relevant provisions of the Act or “the law”. The appellant’s assertion that he was denied a reasonable opportunity to be heard on this basis has no merit.

9. In relation to the claims made orally by the appellant, as has been submitted by the Minister, the task of this Court is to determine whether the judgment of the primary judge is affected by appealable error.  In the absence of the appellant demonstrating appealable error in the judgment of the primary judge, this Court cannot remit the matter to the Tribunal.

10. The appellant contends that the Tribunal did not properly consider his claims.  He does not say which claims were not properly considered or how it is that the Tribunal failed to properly consider his claims.  To the extent the appellant cavils with the merits of the Tribunal decision, the claim is rejected.  It is not otherwise evident that the Tribunal did not properly consider the appellant’s claims. 

11. The appellant asserts that the Tribunal did not believe his refugee claims and that it could not prove they were not genuine. The primary judge dealt with an identical claim at [27] of her judgment and rejected it. It is not the role of the Tribunal to prove that claims made by an applicant are not genuine. Rather, as the Minister submitted, it is for an applicant to provide material and evidence to the Tribunal so that it can reach the necessary state of satisfaction required by the Act for the grant of a visa. While it has been recognised that a liberal attitude is called for on the part of the decision maker in considering any material, given the nature of what may need to be established, this does not mean that there is uncritical acceptance of any allegations made by an applicant: see Randhawa v Minister for Immigration (1994) 52 FCR 437 at 451. Further the weight to be given to evidence and credit findings are matters for the Tribunal. As noted the primary judge reached the same conclusion. There is no error in her approach.

12. The claim made by the appellant that his life will be in danger if he returns to Pakistan does not establish any appealable error in the judgment of the primary judge.  It is, as the Minister submitted, an impermissible attempt to cavil with the merits of the Tribunal’s decision.

    CONCLUSION

13. In light of my findings I will dismiss the appeal and order that the appellant pay the Minister’s costs.

I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Markovic.

Associate: 

Dated:        4 March 2016