SZVRK v Minister for Immigration
[2015] FCCA 3302
•10 December 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZVRK v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 3302 |
| Catchwords: MIGRATION – Review of decision of former Refugee Review Tribunal – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) |
| Minister for Immigration v Jia (2001) 205 CLR 507 Minister for Immigration v Li (2013) 297 ALR 225 Minister for Immigration v SZJSS (2010) 243 CLR 164 Re Minister for Immigration; Ex parte Durairajasingham (2000) 168 ALR 407 SCAA v Minister for Immigration [2002] FCA 668 Singh v Minister for Immigration [2013] FCA 669 WAEE v Minister for Immigration (2003) 75 ALD 630 |
| Applicant: | SZVRK |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3218 of 2014 |
| Judgment of: | Judge Driver |
| Hearing date: | 10 December 2015 |
| Delivered at: | Sydney |
| Delivered on: | 10 December 2015 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Ms A Wong of DLA Piper |
INTERLOCUTORY ORDERS
The name of the second respondent is amended to “Administrative Appeals Tribunal”.
Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,416 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3218 of 2014
| SZVRK |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the former Refugee Review Tribunal, now the Administrative Appeals Tribunal (Tribunal). The decision was made on 5 November 2015. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.
Background facts concerning the applicant’s claims to protection and the decision of the Tribunal on them are conveniently set out in the Minister’s outline of submissions filed on 2 December 2015.
The applicant is a male citizen of Pakistan born on 1 January 1983. He arrived in Australia on 6 May 2013.
The applicant applied for a protection (Class XA) visa on 15 July 2013.[1] His claims were set out in a statement accompanying the application.[2] The application was refused on 20 May 2014.[3]
[1] Court Book (CB) 2
[2] CB 32
[3] CB 126
The applicant applied to the Tribunal for review of the delegate's decision on 4 June 2014.[4]
[4] CB 139
The applicant gave oral evidence before the Tribunal on 10 October 2014.[5] The Tribunal made its decisions on 5 November 2014.[6]
[5] CB 176
[6] CB 202
The applicant's claims
The applicant claimed to be the managing partner of United Business Corporation (UBC) which manufactured and exported marble. The applicant claimed that, for reason that the company was profitable, the Tehreek-e-Taliban Pakistan (TTP) demanded money from the partners of the company including the applicant. The applicant claimed that he did not respond to the demand and the factory was later fired at and a grenade was thrown causing injury to some of the factory workers. Upon the second demand for money the applicant claimed that he departed Pakistan for Australia.
The decision of the Tribunal
The Tribunal accepted that the applicant was involved with UBC.[7] However, the Tribunal found that the applicant's evidence regarding the claimed incidents were variously false, vague and inconsistent.[8]
[7] CB [32] and [61]
[8] CB [31] and [56]
The Tribunal found that the applicant had falsified the document referencing the grenade attack and, therefore, found that the applicant had fabricated this element of his claim.[9] The Tribunal had serious concerns about the supporting documentation provided by the applicant and, consequently, the Tribunal placed no weight on any of the documents provided in support of the claims that he had been targeted and threatened by the TTP.[10]
[9] CB [46]-[47] and [62]
[10] CB [57]
On the basis of country information, the Tribunal did accept that there had been some extortion in Pakistan for the purposes of funding operations for the TTP.[11] However, it did not accept that the applicant had been targeted for harm or extortion by the TTP.[12] Consequently, the Tribunal found that the chance of the applicant or UBC being targeted or harmed by the TTP or any other group for the purpose of gaining financial reward was remote.[13]
[11] CB [62]
[12] CB [58] and [62]
[13] CB [68]
Consequently, the Tribunal found that the applicant was not a person to whom protection obligations were owed.[14]
[14] CB [69]-[73]
The present proceedings
These proceedings began with a show cause application filed on 19 November 2014. The applicant continues to rely upon that application. There are four particularised grounds in it:
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 he faces a real threat from TTP, a militant organisation which repeatedly sought ransom money from him. The applicant states that he produced before the Tribunal considerable evidence to prove his claim. However, the Tribunal disregarded the evidence as not credible and /or manufactured and/or falsified. The Tribunal in the regard, did not accept as of any significant evidentiary value some of the most important documents the applicant produced before it such as documents relating to the grenade attack to his marble factory at Karachi, his evidence relating to the incident where the applicant’s car was shot at, and threatening letters from the TTP, that sought ransom money from the applicant.
Ground 2
The failure to understand or take into account the applicant’s claim s that his life was at risk and continue to be risky manifest ignorance and lack of knowledge of the realities in 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 claim is false and that his evidence is not credible and/or manufacture and/or falsified.
Ground 3
The Tribunal’s conclusion that the applicant 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.
Particulars
The Tribunal found that there is not a real chance that the applicant will suffer serious harm in Pakistan. Such conclusion was arrived at by the Tribunal, by rejecting most of the evidence relevant to the applicant’s claim as not credible and/or manufactured and/or falsified. The applicant seeks the Honourable Court to reconsider his evidence in full, giving weight to his evidence.
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 or falsified.
The application is supported by two affidavits. The first was filed with the application on 19 November 2014 and the second was filed in court, by leave, today. I accepted both as submissions.
I accept as evidence the court book filed on 7 January 2015.
Both parties made oral submissions today in addition to their written submissions.
In respect of the first three grounds in the application, the applicant’s concern centres upon the rejection of certain of his documentary evidence and the Tribunal’s adverse creditability findings.
As I explained to the applicant, it is apparent from the Tribunal’s decision that the information he provided to the Tribunal was considered but only part of it was accepted. In my opinion the adverse credibility findings made by the Tribunal were open to it on the material before it.
The applicant invited the Court to make its own inquiries to verify his claims for protection. As I explained to him, that is beyond the scope of these proceedings.
The fourth ground asserts bias. In response to my invitation to expand upon that assertion, the applicant referred to the fact that he was not believed. The simple fact that the Tribunal did not accept the applicant’s claims cannot, however, support an assertion of bias.
In his affidavit filed in court by leave today, the applicant raises for the first time an assertion of interpretation problems. The applicant stated, from the bar table, that the interpreter engaged for the Tribunal hearing was an Afghan man whose spoken Urdu was different from that spoken in Pakistan. He claims that he found it difficult to understand the interpreter and he suspects that what he said may not have been accurately interpreted into English. He said he raised his concerns with the interpreter after the Tribunal hearing and the interpreter offered to discuss those concerns with the applicant but he then left the vicinity.
The applicant also says that he reported his concerns to his representative, Mr Chaudhry, who was assisting him before the Tribunal but who did not attend the Tribunal hearing. As far as the applicant knows, Mr Chaudhry took no action.
The applicant concedes that he did not raise any concern with the Tribunal either during the Tribunal hearing or afterwards. He asserts that he was not aware he could do so. It is not apparent from the Tribunal decision that there was any interpretation problem of which the Tribunal was aware. The Tribunal’s discussion of what occurred at the hearing indicates no lack of understanding between the applicant and the Tribunal.
I note that neither the applicant nor Mr Chaudhry responded to the hearing invitation issued by the Tribunal. Nevertheless, the applicant attended the Tribunal hearing; Mr Chaudhry did not. Although the Tribunal was not on notice of the applicant’s attendance it was able to obtain the services of an Urdu interpreter within a short time. The Tribunal’s hearing record[15] records the name of the interpreter which the applicant says is an Afghan name.
[15] CB 176
That may be so and it may well be that the interpreter spoke with an accent different from that of a Pakistani Urdu speaker. It is also possible that some different words may have been used by the interpreter. Even if that is accepted as true, however, it is not sufficient to establish that the standard of interpretation was inadequate. There is nothing supporting the applicant’s assertion of interpretation problems apart from the assertion itself.
I otherwise agree with the Minister’s submissions concerning the grounds of review.
Grounds 1, 2 and 3
Grounds 1, 2 and 3 all allege a failure to consider information. However, contrary to what is asserted, the Tribunal did take into account all of the information before it.
The Tribunal clearly set out in its decision record the claims before it but (for the reasons it gave) found that the applicant had given evidence that was variously false, vague and inconsistent.
It wholly rejected the factual basis of the applicant's claims. This finding was open to the Tribunal to make as the decision-maker par excellence on the material before it and for the reasons it gave.[16]
[16] Re Minister for Immigration; Ex parte Durairajasingham (2000) 168 ALR 407 at [67].
The Tribunal also clearly set out the material and evidence before it at [21], [23], [34], [50] and [52] of its decision record. It is noted that at [21] the Tribunal referred generally to having documents relating to UBC before it which documents included membership certificates, tax certificates, shipping receipts and a membership deed.
In circumstances where the documents did not relate directly to the claims before it, there was no requirement that the Tribunal refer specifically to the documents in its decision record. In any event, the Tribunal accepted that the applicant was involved with UBC.
It is well established that the choice of weight to give to corroborating documents is a matter for the Tribunal.[17] Consequently, it is not the role of the Court to assign a different weight or evaluation to evidence before the Tribunal.[18]
[17] Minister for Immigration v SZJSS (2010) 243 CLR 164 .
[18] WAEE v Minister for Immigration (2003) 75 ALD 630.
In circumstances where the Tribunal had found that the applicant had not given credible evidence or produced credible documents in support of his claims for protection, it was open to the Tribunal to find that the applicant was not a person to whom protection obligations were owed.
Therefore, the findings made by the Tribunal had an evident and intelligible justification and, consequently, it was not illogical, irrational or unreasonable for the Tribunal to affirm the decision under review.[19]
[19] Minister for Immigration v Li (2013) 297 ALR 225 at [76]; Singh v Minister for Immigration [2013] FCA 669 at [35].
Ground 4
Ground 4 alleges a breach of natural justice, and the particulars suggest the alleged breach is one of bias.
An allegation of bias is serious and, consequently, it must be clearly made and distinctly proved.[20] There is no transcript before the Court, consequently, it is rare that bias can be made out with reference to the Tribunal’s decision record alone.[21] Nonetheless, on a fair reading of the decision record, there is nothing to suggest that the Tribunal member did not bring a fair and impartial mind to the hearing and the making of the decision.[22]
[20] Minister for Immigration v Jia (2001) 205 CLR 507 at 51 [69] per Gleeson CJ and Gummow J and at 546 [127] per Kirby J.
[21] SCAA v Minister for Immigration [2002] FCA 668 at [38].
[22] Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at 434 [27]-[28] per Gleeson CJ, Gaudron and Gummow JJ.
I have concluded that the applicant has been unable to establish an arguable case of jurisdictional error by the Tribunal.
I will order that the application be dismissed, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules).
In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale. The applicant claimed impecuniosity but that is not a reason for the Court to refrain from making a costs order.
I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,416 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules.
I will, in addition, order that the name of the second respondent be amended to the Administrative Appeals Tribunal.
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 11 December 2015
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