SZVLW v Minister for Immigration
[2016] FCCA 3285
•14 November 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZVLW v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 3285 |
| Catchwords: MIGRATION – Application for review of former Refugee Review Tribunal decision – whether Tribunal breached s.424A of the Act – whether Tribunal failed to assess an integer of the applicant’s claims – whether Tribunal breached procedural fairness obligations – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.424AA, 424A, 425, 427, 476 |
| Cases cited: SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609 SZLFX v Minister for Immigration and Citizenship [2009] HCA 31; (2009) 238 CLR 507 |
| Applicant: | SZVLW |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3107 of 2014 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 14 November 2016 |
| Date of Last Submission: | 14 November 2016 |
| Delivered at: | Sydney |
| Delivered on: | 14 November 2016 |
REPRESENTATION
| Applicant: | In person | |
| Solicitors for the Respondents: | Ms C Hillary of DLA Piper Australia | |
ORDERS
The name of the second respondent is amended to read “Administrative Appeals Tribunal”.
The application made on 10 November 2014 and amended on 28 January 2015 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $4,300.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3107 of 2014
| SZVLW |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Ex Tempore; Revised from Transcript)
This is an application pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) made on 10 November 2014, and amended on 28 January 2015, seeking review of the decision of the Refugee Review Tribunal, now the Administrative Appeals Tribunal (“the Tribunal”), made on 16 October 2014, which affirmed the decision of the delegate of the Minister to refuse a protection (Class XA) visa to the applicant.
In evidence before the Court is a bundle of relevant documents, filed and tendered by the Minister (“the Court Book” – “CB”, “REI”).
Background
The applicant is a citizen of Pakistan (CB 4). He arrived in Australia on a “Business Visa” on 15 June 2013 (CB 14). He applied for a protection visa on 23 July 2013 (CB 1 to CB 29, including a written “statement” of the applicant’s).
The applicant’s claims to protection, as contained in his “statement” can be summarised as follows. He claimed that he was persecuted because of his “Shia background”, as he belonged to the “minority Shia Hazara sect of Muslims”, while the predominant religion in Pakistan was Sunni Muslim (CB 28). He claimed that family members died when a Sunni bomber attacked a Shia procession to mark a religious festival. Further, he claimed that he had met a “Sunni girl and got married in 2008”. He was forced to divorce her by the local “Sunni radical group Sipah-e-Sahaba” as they accused him of converting her to Shia, and her family members threatened to kill him due to the divorce.
The applicant claimed that the radical group also accused him and his family of being “Iranian state” funded Shia extremists, and threatened to kill all his family members. He claimed that in May 2013 he had been involved in campaigning for the Pakistan Peoples Party (“PPP”), as he believed that the candidate would protect his community. However the opposing party won. The applicant claimed that after the election he was attacked by “Sipa-e-Sahaba” (“SSP”) at his mosque during prayers, however the “bomb which they threw in the mosque did not blow up” (CB 28). He also claimed that he was their “primary target because they believed that [he had] great influence in [his] community and [had] money to support [his] ideology” (CB 28). He claimed that if he returned to Pakistan he would not have protection as the Pakistani government does not protect Shias, so his life would be in “great danger” (CB 29).
The delegate refused the application on 31 January 2014 (CB 41 to CB 67). The delegate noted that at the interview before her, the applicant made a further claim in relation to his marriage that he had been “kidnapped and tortured” by members of the SSP prior to his forced divorce (CB 52). The delegate did not accept that his previous marriage would be a reason for harm on return to Pakistan. The delegate did not accept that the applicant had engaged in political activities with the PPP, or that the SSP sought to harm him for reasons of political opinion, or that he was personally targeted by militants or by the SSP due to imputed links to an extremist group in Iran (CB 57).
The applicant applied for review to the Tribunal on 25 February 2014 (CB 68 to CB 73). By letter dated 5 September 2014, the applicant was invited to attend a hearing before the Tribunal on 15 October 2014 (CB 78 to CB 79).
By facsimile transmission on 9 October 2014, the Tribunal received a letter from a solicitor and migration agent stating that the applicant had requested the firm act on his behalf. The letter requested that the hearing before the Tribunal be postponed to allow them to prepare “properly”, as they were not able to attend at the time of the hearing. No relevant form authorising the migration agent to receive correspondence was submitted (CB 80).
The Tribunal, by letter sent to the applicant on 10 October 2014, refused the application for postponement of the hearing. The migration agent provided an “Appointment of Representative” form on 11 October 2014 (CB 85 to CB 86). The Tribunal provided the letter sent to the applicant on 10 October 2014 to the migration agent by facsimile on 13 October 2014 (CB 87).
The applicant’s representative provided written submissions to the Tribunal on 14 October 2014 (CB 88 to CB 92). The applicant attended the hearing before the Tribunal on 15 October 2014 (CB 93).
The Tribunal affirmed the delegate’s decision on 16 October 2014 (CB 100 to CB 108). The Tribunal found that the applicant was “not a witness of truth” ([2] at CB 101).
The Tribunal had the following concerns about the applicant’s credibility.
First, at the hearing before the Tribunal, the applicant claimed that from 2005 to early 2013, he began to convert Sunnis to Shias. He claimed he stopped this activity because of threats he was getting from the SSP ([8] at CB 102). The Tribunal noted that it put to the applicant that his written “statement” provided with his application had not contained this claim ([9] at CB 102). The applicant claimed that he was not educated and he expected he could provide more details at the “interview” (presumably with the delegate). The Tribunal found the absence of any mention of this claim in his statement “was not credible” ([10] at CB 102 to [11] at CB 104).
The Tribunal noted that it raised with the applicant, at the hearing, that he had not in fact raised this claim himself at the “interview”. The applicant responded that he only answered the questions asked of him. The Tribunal noted that it listened to the “audio recording of the interview” and found that the delegate questioned him “in a way that gave him ample opportunity to advance the claims” ([11] at CB 103). I note that the Tribunal stated that it regarded this failure as an “inconsistency” in his claims, not adverse information for the purpose of s.424A of the Act (see footnote “4” on CB 103).
Second, the Tribunal noted that at the hearing before it the applicant claimed to have fled Sialkot, the applicant’s home town, and sold his business in April 2013 due to the SSP making it difficult to run his business and his fear of them ([12] at CB 103). However, the SSP would find him in any location and threaten him, therefore he came to Australia ([13] at CB 103). The applicant also claimed during the hearing that he would undertake work for the PPP in different locations ([13] at CB 103). However, the Tribunal noted that he also said that he “ceased his political activities on 20 May 2013 and that all of these activities were undertaken in Sialkot”. The applicant then stated he ceased his activities because he felt threatened ([14] at CB 103).
The Tribunal noted that it put to the applicant that it had “difficulty accepting that” he had ceased living in Sialkot from 9 April 2013, due to a fear for his life, however he continued to campaign in Sialkot for the PPP. The Tribunal rejected the applicant’s explanations for this incongruity ([15] – [16] at CB 104).
Third, the applicant claimed at the hearing that he was “taken” by the SSP after the elections on 11 May 2013. He related how he was taken by four men on motorcycles and he was beaten on the head and tortured ([17] at CB 104). When the Tribunal asked the applicant how long he had been held by the men, he then said he “got confused and the incident he was relating occurred in 2008”, and in response to his former marriage to a Sunni woman ([18] at CB 104). The Tribunal put to the applicant its concern that he had confused these events. The applicant explained that he was “under stress due to his fear” and “he had a slight confusion caused by the beating he received” ([19] at CB 104 to CB 105). The Tribunal rejected all the explanations made by the applicant as “inconceivable” ([20] at CB 105).
The Tribunal noted that at the start of the hearing, it had put the applicant on notice that “even though the delegate may have found aspects of his account credible, the Tribunal would… have to make up its own mind” ([21] at CB 105). In all, it found that he was not a witness of truth and did not believe his claims of past events of harm ([21] – [23] at CB 105).
Further, it noted with the applicant that on his visa application for the business visa on which he entered Australia, his employment history was inconsistent with his claims for protection. The applicant told the Tribunal that the information on the business visa application was “false and fabricated by the agent as a means of enabling him to get a visa and leave Pakistan” ([24] at CB 105). The Tribunal found that this did not demonstrate that his reasons for leaving Pakistan were true ([24] at CB 105 to CB 106).
The Tribunal did accept that he ran a jewellery business in Sialkot, where he lived with his family, that he was Shia, and that his paternal grandfather was Hazara. The Tribunal put to the applicant country information that indicated that violence against Shia in the Punjab, where Sialkot was located, was remote ([28] at CB 106). Further, that his claim to face a higher risk of harm due to his Hazara ethnicity was not supported by country information ([30] at CB 107).
The Tribunal noted the applicant’s representative’s request for a postponement of the hearing, and the Tribunal’s subsequent refusal. It noted that the grounds on which the Tribunal found that the applicant was not a credible witness related to inconsistencies in the applicant’s own evidence and incongruity in his claims. The Tribunal found that these matters were not affected by engaging a representative. It found that the applicant had had ample opportunity to advance his claims, however for the reasons that it had set out, it found them to be false ([31] at CB 107).
The Tribunal found that the applicant would not face serious or significant harm on return to Pakistan ([32] at CB 107 and [35] at CB 108).
Application Before the Court
The application before the Court, as amended on 28 January 2015, contains the following sole ground:
“The second respondent failed to comply with the mandatory requirement under section 424A of the Migration Act to give the applicant clear particulars of information it considered would be part of the reason for affirming the decision under review, to ensure the applicant understood why the information was relevant to the review and the consequence of it being relied upon, and to invite the applicant to comment upon or respond to that information.
Particulars
The tribunal considered each of the following to be information it considered part of the reason for affirming the decision under review:
a. Evidence about converting Sunni's become Shias.
b. Evidence about fleeing from Sialkot in April 2013 but undertaking political activities there after that.
c. Evidence about being abducted by the SSP.
The Tribunal did not issue any written invitation under section 424A of the Act and, at the hearing, made no attempt to, comply with the requirements set out in section 424AA of the Act.”
Before the Court
Before the Court today, the applicant appeared in person and was assisted by an interpreter in the Urdu language. The Minister was represented by a solicitor. The applicant confirmed that he wished to press the ground of the amended application and, in effect, abandoned the grounds of the original application (filed 10 November 2014).
However, as the applicant subsequently submitted that he was not a lawyer, and did not understand relevant legal matters, it is appropriate that I consider all of the applicant’s grounds. That is, in both applications to the Court. Although for the reasons that I am about to give, none of the applicant’s grounds, including those of his original application, reveal jurisdictional error on the part of the Tribunal.
I should also note that the applicant claimed that the “migration agent lawyer”, who assisted him before the Tribunal, also drafted the grounds of his applications to the Court. In this light, he was therefore not able to assist in explaining those grounds. The applicant did make a number of other statements before the Court that also require attention. First, that the Tribunal did not give him “a proper consideration”, and did not give proper consideration to his refugee claims. This is a matter that is raised, perhaps not as explicitly, in the grounds, and I will deal with those in a moment. Second, the applicant claimed that he was not given an opportunity by the Tribunal to submit more documentation in order to, as he said, “prove his claims”. He wanted the opportunity to do that before the Court, or, rather, if he was given that opportunity, he could get more documents to prove that he was a “genuine refugee”.
However, this Court has no power to substitute findings of fact for those made by the Tribunal. The Court has no power to grant the applicant a protection visa. Even if the applicant did bring additional documents to the Court, the Court could not intervene to grant the applicant a protection visa.
Consideration
Turning, first, to the ground of the amended application. The sole ground asserts a breach of s.424A of the Act because the Tribunal is said not to have put to the applicant for comment, what are said to be, three pieces of information (see [23] above).
In the matter of the conversion of Sunnis to Shia, the Tribunal had regard at [9] - [10] (at CB 103) of its decision record, to the applicant’s written “statement” lodged with his protection visa application. It also dealt with the applicant’s explanation as to why he made no mention of this claim in that written statement. The applicant had said he was not educated, that fees for a professional to help him with his application were high, and that he wrote a “short story” with a taxi driver whom he had met and who helped him to prepare the statement.
The Tribunal found that, even allowing for the applicant’s level of education, and the fact that he prepared his “statement” without professional assistance, this did not prevent him from relating other accounts of suffering harm from the SSP in that statement. The Tribunal reasoned that if he could make some claims regarding the SSP in that written statement, there was no conceivable reason why he could not have also claimed that he feared harm because he was seeking to convert Sunnis to Shias.
It is clear, having regard to the Tribunal’s decision record, that what the applicant describes as “information”, are, in fact, the three headings used by the Tribunal under which it describes the applicant’s evidence and claims to fear harm. In effect, therefore, to the extent that these headings are said to be “information” for the purposes of s.424A of the Act, it is the case that the evidence given by the applicant about converting Sunnis to Shias, evidence about fleeing from Sialkot in April 2013, and evidence about being abducted by the SSP, was evidence given by the applicant to the Tribunal.
Even if it could be said to be “information” for the purposes of s.424A of the Act, it is exempt from the obligation in that section because of the operation of s.424A(3)(b) of the Act. Therefore, if the applicant’s ground was meant to refer to everything that is referred to by the Tribunal below those headings, then, again, no breach of s.424A of the Act is apparent.
As stated earlier, the evidence given by the applicant to the Tribunal is exempt from the obligation in s.424A(1) of the Act because of s.424A(3)(b) of the Act. Specifically, evidence, claims, or material provided by the applicant in writing and orally, both in his initial protection visa application and in writing to the Tribunal, falls within the exceptions in s.424A(3)(ba) and s.424A(3)(b) of the Act respectively from the obligation in s.424A(1) of the Act. Further, the country information relied on by the Tribunal is exempt from the obligation in s.424A(1) of the Act by virtue of the operation of s.424A(3)(a) of the Act.
As set out above, the Tribunal made reference to what the applicant told the delegate at the interview after having listened to the recording of that interview. What the applicant told the delegate at the interview does not fall within any of the exceptions in s.424A(3) of the Act.
The Tribunal’s references were, that at the interview with the delegate, although the applicant did mention being threatened by the SSP, he made no mention of trying to convert Sunnis to Shias and the SSP threatening him for that reason. In short, the Tribunal found that there was inconsistency between the applicant raising that claim at the hearing before it, but failing to raise that claim at an earlier time.
The Tribunal clearly had regard to the High Court’s judgment in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609 (“SZBYR”), where the High Court explained what constituted “information” for the purposes of s.424A of the Act, as can be seen from footnote “4” at CB 103. Footnote 4 as it appears at CB 103, is made with reference to the Tribunal’s report that at the hearing, it put to the applicant that at the interview with the delegate, as confirmed by listening to the “audio”, he did not raise this claim. Foot note 4 (at CB 103) is as follows:
“The Tribunal regards his failure to mention those claims at the interview with the delegate as an inconsistency and therefore not ‘adverse information’ within the meaning of the Act. See SZBYR v MIAC (2007) 235 ALR 609.”
The Tribunal’s reference in the decision record to what was on the “audio” recording of what the applicant claimed at the interview with the delegate, needs to be seen in context. That is, a claim raised by the applicant for the first time at the Tribunal hearing which was not made in the applicant’s written “statement” which accompanied his protection visa application, or before the delegate. Noting, of course, that what the applicant gave in writing in that “statement” falls within the exception in s.424A(3)(ba) of the Act.
It is clear that a part of the reason, therefore, using the language of s.424A(1) of the Act, for the Tribunal’s conclusion as to the applicant’s credibility, or lack of credibility, was the inconsistency as between his earlier opportunities to raise this particular claim, and his failure to do so, and his subsequent raising of that claim at a much later time in circumstances where the Tribunal found that it was open to him to have raised it at that earlier time.
As the Tribunal noted, with reference to SZBYR, inconsistencies, gaps and defects in the applicant’s evidence is not “information” for the purposes of s.424A of the Act (see SZBYR at [17] - [18] and SZLFX v Minister for Immigration and Citizenship [2009] HCA 31; (2009) 238 CLR 507).
Another matter raised by the Court with the Minister’s solicitor today, related to the Tribunal’s reference to the applicant’s “file” relating to his application for the business visa on which he travelled to Australia. Here again, having regard to [24] of the Tribunal’s decision record (at CB 105 to CB 106), the Tribunal reasoned as follows.
The Tribunal put to the applicant, that in his business visa application he had made certain statements concerning his employment that appeared to be inconsistent with his claims to the Tribunal on that question. The applicant is reported as having told the Tribunal, at the hearing, that the information in that visa application was “false and fabricated” by an agent as a means of enabling him to get a visa and leave Pakistan. The Tribunal accepted the applicant’s evidence that the information that was put forward in the application for the business visa was “false”.
The reason, or a part of the reason, therefore, for finding adversely to the applicant’s credit was based on the evidence given by the applicant himself to the Tribunal, at the hearing. That is, the evidence that the applicant resorted to providing false information to support a visa application did not demonstrate that the reasons the applicant had given for leaving Pakistan were true. The evidence given by the applicant, on which the Tribunal based its finding, was evidence clearly given at the hearing and, therefore, falls within the exception in s.424A(3)(b) of the Act.
I should note as well, for the sake of completeness, that the Tribunal’s subjective appraisals, its view, which was ultimately adverse, of the applicant’s evidence, is also not “information” for the purposes of s.424A(1) of the Act (SZBYR, VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 123). In that light, there was also no necessity for the Tribunal to utilise the facility available at s.424AA of the Act.
It is the case that the applicant has not provided any evidence, for example, a transcript of the Tribunal hearing, to challenge the Tribunal’s report of what occurred, or what was said at the Tribunal hearing. The opportunity to provide any such evidence had been given to the applicant by a Registrar of the Court by orders made on 4 December 2014. The only evidence before the Court of what occurred at the Tribunal hearing is in the Tribunal’s decision record. It remains unchallenged by any evidence given by the applicant.
On that evidence also, it is clear that the Tribunal’s rejection of key parts of the applicant’s factual claims as to why he claimed to fear harm was based on issues that were raised at the hearing. In that light, and for the sake of completeness, I note that the issues that can be said to be dispositive or determinative of the review were raised at the hearing with the applicant, and he was given the opportunity to discuss those issues with the Tribunal (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152). The applicant’s claim before the Court today, that he was not given a proper opportunity to explain his case, cannot be sustained.
Turning now to the grounds of the originating application. The grounds of that application are in the following terms:
“1. The Second Respondent committed jurisdictional error by failing to address the applicant’s claims in the way it was made;
a. The applicant stated in his protection visa that he was a Shia minority in Pakistan and married to Sunni woman.
b. The SSP members threatened to kill the applicant because the applicant married to a Sunni woman and invited Sunnis to join the Shia.
c. The Tribunal did not consider the way that he claimed the SSP had tried to kill him because of his activities for the Shia community.
2. The Tribunal constructively failed to exercise its jurisdiction as it did not address all integers of Applicant’s claims;
a. The Tribunal did not properly consider applicant’s claim that he was kidnapped and tortured.
b. The Tribunal did not consider the applicant who had been under immense and intimidating pressure from SSP.
3. The 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 material, without giving the applicant the opportunity to be heard in respect of those matters.
4. The Tribunal’s decision was unjust and made without taking into account the full gravity of the applicant’s circumstances and consequences of claims.
5. The Tribunal failed to consider an integer of the Applicant’s claim, in failing to consider whether or not a Shia in Pakistan was at risk of harm from radical Sunnies, and not able to access effective protection.”
[Errors in original.]
As the Minister, in my view correctly, submits, grounds one, two, four and five essentially allege that the Tribunal did not consider various claims made by the applicant. Having regard to the Tribunal’s decision record, what is meant by “not consider” by the applicant’s grounds, which he said were drafted by his lawyer, should really be understood in the context of the evidence before the Court, as being a complaint that the Tribunal did not accept those claims. I agree with the Minister’s written submissions at [19] - [20] that the Tribunal did consider those claims made by the applicant. The applicant’s complaint before the Court that the Tribunal did not give “proper consideration” to his claims is no more than an expression of disagreement with the Tribunal’s findings of fact. No legal error is revealed in these circumstances.
Grounds one, two, four and five of the originating application, can only be seen as a complaint about the Tribunal’s adverse conclusion regarding the applicant’s credibility, and the findings that informed that conclusion. As the Minister submitted today, the Tribunal’s adverse credibility finding is no more than a finding of fact made by the Tribunal, which was reasonably open to it on the material before it, and for which the Tribunal gave cogent reasons (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407). There is no jurisdictional error apparent in the Tribunal’s reasoning in this regard.
Ground three of the originating application, alleges a denial of procedural fairness. In this regard, I note, as the Minister submitted today, that Division 4 of Part 7 of the Act is the exhaustive statement of the natural justice hearing rule in relation to the matters dealt with in that division.
I note that the applicant was invited to a hearing before the Tribunal pursuant to s.425 of the Act. On what is before the Court, it cannot be said that that invitation was anything other than a meaningful opportunity for the applicant to give his evidence and make his arguments in relation to the issues in the review (SZBEL, Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41 and Minister for Immigration & Multicultural & Indigenous Affairs v SCAR [2003] FCAFC 126; (2003) 128 FCR 553). Nor for the reasons stated above, was there any breach of the obligations in s.424A and s.425 of the Act. The hearing invitation complied with all of the statutory and regulatory requirements.
As set out in [21] above, the applicants representative sought a postponement of the hearing date. As set out in such authorities as Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 (“Li”) and Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437, the Tribunal must act reasonably in the exercise of any statutory discretion to the extent that it may be said that the request for a postponement of the hearing date was a request to adjourn the review pursuant to s.427 of the Act. There is nothing to say that the Tribunal acted unreasonably in that regard. The Tribunal provided an “intelligible justification” in refusing that request (Li at [76]).
In all, therefore, absent jurisdictional error, the application to the Court, as amended, must be dismissed. I will make that order accordingly.
I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Date: 16 December 2016
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Procedural Fairness
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Judicial Review
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Jurisdiction
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Natural Justice
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