SZWAZ v Minister for Immigration and Anor (No.2)

[2016] FCCA 2214

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZWAZ v MINISTER FOR IMMIGRATION & ANOR (No.2) [2016] FCCA 2214

Catchwords:
MIGRATION – Application for review of decision of Refugee Review Tribunal (Tribunal) – whether, given certain findings the Tribunal made favourable to the applicant, it was reasonably open to the Tribunal not to be satisfied the applicant did not have a well-founded fear of persecution or that there were substantial grounds for believing that, as a necessary and foreseeable consequence the applicant will suffer significant harm if returned to his country of nationality – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.36(2A), 91R, 91R(1), 91R(1)(b), 91R(2)

Cases cited:

SCAA v Minister for Immigration and Multicultural Affairs [2002] FCA 668

Applicant: SZWAZ

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 233 of 2015

Judgment of: Judge Manousaridis

Hearing date: 29 July 2016

Delivered at: Sydney

Delivered on: 26 August 2016

REPRESENTATION

Applicant in person assisted by an interpreter.

Solicitors for the Respondents:

Mr T Galvin of

Minter Ellison

ORDERS

1. The application is dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 233 of 2015

SZWAZ

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). 

Applicant’s claims for protection

1. In his application for protection the applicant claimed to fear harm because he was involved with the Pakistan Tehreek-e-Insaf (PTI) political party.[1] Before the delegate, the applicant said he joined the PTI in 2008, and had continued to work with the party.

   [1] CB7

2. The applicant claimed that on 30 October 2011 the PTI was engaged in a “big” campaign in Lahore, where it was the third largest political party. The PTI was politically active and working towards capturing Punjab Pakistan. Another political party, the Pakistan Muslim League Nawaz (PML), was also working in Lahore. The PML tried to stop the PTI and began making political threats to PTI workers. The applicant claimed that at the beginning, he and the other party members ignored the threats, but with the passage of time it was going to be difficult for PTI to “service” in Punjab because the PML were in government in Punjab.

3. With time, the applicant was “personally attach” with PTI, making good relationships with the Youth Wing of the PTI. He participated in PTI’s campaigns in which he “remained with Imran Khan”. Soon the applicant “became very famous on media”. “Last year”, the applicant “faced many threats on Phone calls”, but the applicant ignored them.[2]

   [2] CB7

4. In September 2012 the applicant travelled to Australia on business to purchase a second-hand printing machine.[3] After completing his work, the applicant returned to Pakistan where he started work again with the PTI.

   [3] CB274, [3]

5. The PTI worked very hard because the government was near its end. Because the applicant was famous on media, he again faced harmful threats by telephone. The applicant went to the police but, even after the applicant provided evidence of the calls, the police ignored his complaint. Persons then “started attacks at my house” and followed the applicant during daytime. On one occasion, “people” attacked the applicant while he was driving. At the hearing before the Tribunal, the applicant’s evidence about this incident was that “some people fired shots in the air when he was driving somewhere”.[4]

   [4] CB276, [10]

6. In October 2012, when the applicant was not in his home, some unknown persons came to his house armed with deadly weapons and threatened the applicant would be taught a lesson unless he abstained from participating in politics. These people fired and targeted the applicant’s house. The applicant left Lahore, and went to his village. The applicant received threats there by telephone. The applicant reported these calls to the police who accepted his evidence and assured the applicant that they would work on it. The police also told him, however, “you are not safe”. Because of party work, the applicant returned to Lahore where he found “threatful” letters which stated “if you don’t leave your party we will kill you”.[5] The applicant then decided he had to leave Pakistan and came to Australia.

   [5] CB8

7. The applicant thought that if the PTI would win the 2013 election he would go back to Pakistan. The PTI did not, however, win the election, and because of this, the applicant fears he will be killed.[6]

   [6] CB8

8. Before the Tribunal the applicant said that during his first visit to Australia, he met the woman who later became his wife. The applicant returned to Australia on 21 April 2013 and, on 13 May 2013, he and his wife to be made a booking to get married at a registry office on 27 September 2013.[7]

   [7] CB274, [3]

9. In support of his application for protection, the applicant provided a number of documents relating to his involvement in the PTI including a certificate of appreciation from the PTI Leadership Support Office, letters notifying him of his promotions within the Lahore Division of the PTI Youth Wing and documents from a Pakistani court and the Lahore police.[8]  The applicant also provided a number of media reports relating to the PTI and photographs of himself engaged in political activities.[9]

   [8] CB32-51

   [9] CB90-101, CB141-167

Tribunal’s reasons

1. The Tribunal accepted that the applicant was involved in the PTI party in Pakistan.[10] However, the Tribunal found that the applicant’s involvement was limited to attending meetings or gatherings, and did not accept that the applicant was a prominent party figure as claimed.[11] The Tribunal also accepted the applicant “may have” received threatening telephone calls and letters from political opponents,[12] that in October 2012 some people fired shots at his uncle’s house and that, on another occasion, some people fired shots in the air when he was driving to a convention with the Youth President. The Tribunal accepted these were attempts to scare the applicant, but it did not accept there was any intention on anyone’s part to do him harm.[13]

   [10] CB280, [26]

   [11] CB280, [27]

   [12] CB280, [27]

   [13] CB280, [27]

2. The Tribunal also accepted there had been incidents in which people involved in the PTI had been killed during elections, and there was an incident in June 2014 in Lahore where members of another party, the Pakistan Awami Tehreek (PAT), had been killed. The Tribunal considered it significant that the last incident occurred as a result of a sit-in protest organised by the PTI and the PAT with the object of forcing the elected government of Pakistan to resign. The Tribunal considered there is only a remote chance that similar protests would be organised by the PTI in the future or that the applicant would become involved in such protests if he returns to Pakistan now or in the reasonably foreseeable future.[14] The Tribunal did not accept that the PTI is being prevented from holding meetings or gatherings, or that people are being arrested or killed simply because of their involvement in the PTI.[15]

   [14] CB280-281, [28]

   [15] CB281, [29]

3. The Tribunal referred to a press report the applicant provided about a bomb blast in Lahore. In the absence of particular factors that would put the applicant at risk, the Tribunal did not accept there was a real chance the applicant will suffer serious harm “in the context of these sorts of bomb blasts” if he returns to Lahore, now or in the reasonably foreseeable future.[16]

   [16] CB281, [30]

4. Based on these findings, the Tribunal also was not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan, there is a real risk the applicant will suffer significant harm as a result of his involvement with the PTI.[17]

   [17] CB281-282, [31]

Grounds of application

1. The applicant’s application contains four grounds of review. The first is:

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

2. Under the heading “Particulars” the applicant has included detailed information. The particulars repeat the claims the applicant made before the Tribunal, and the Tribunal’s conclusions that the applicant did not take a prominent part in the PTI’s activities, and that “the threats, intimidation and gun shots were aimed at scaring the applicant than to harm him”. It is then stated that the applicant submits “the Tribunal miscalculated the gravity of real politics in Pakistan and fear applicable to him, and in doing so, did not give due weight to his evidence or disregarded them”, and that the applicant said his fear is continuing now because “PML is in power”.

3. In his oral submissions in reply, the applicant, who is not legally represented, submitted he could not understand how, notwithstanding the Tribunal’s having accepted people fired shots at the applicant’s uncle’s house and that, on another occasion, some people fired shots in the air when the applicant was driving to a convention with the Youth Wing, for the purpose of scaring him, the Tribunal nevertheless found the applicant was not at risk. The applicant submitted that, given the Tribunal found the incidents had occurred, it was not reasonably open to it to conclude the applicant did not have a well-founded fear of persecution, or that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s being removed from Australia to Pakistan the applicant will suffer significant harm as a result of his involvement with the PTI.

4. One can see why the applicant might consider the Tribunal’s decision to be incongruous. People firing shots at a person’s relative’s house, and while the person is driving, is a threat to the person’s safety. But the Tribunal was required to consider two ultimate questions. The first was whether the applicant had a well-founded fear of persecution. The Tribunal was required to answer that question having regard to the meaning of “persecution” as defined in s.91R of the Migration Act 1958 (Cth) (Act) as that section applied to the applicant. Subsection 91R(1) provided:

   For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless:

   (a)that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and

   (b)  the persecution involves serious harm to the person; and

   (c)  the persecution involves systematic and discriminatory conduct.

5. Subsection 91R(2) of the Act identified the following instances of “serious harm” for the purposes of s.91R(1)(b) of the Act:

   (a)a threat to the person’s life or liberty;

   (b)significant physical harassment of the person;

   (c)significant physical ill-treatment of the person;

   (d)significant economic hardship that threatens the person’s capacity to subsist;

   (e)denial of access to basic services, where the denial threatens the person’s capacity to subsist;

   (f)denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

6. Given these provisions, it was reasonably open to the Tribunal to conclude, as it did, and for the reasons it gave, that, notwithstanding shots having been fired on two occasions for the purpose of frightening the applicant, it was not satisfied the applicant has a well-founded fear of persecution because of his membership and participation in the activities of the PTI. In particular, it was reasonably open to the Tribunal to conclude that the two incidents did not involve systematic harm.

7. The second ultimate question the Tribunal had to consider was whether there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s being removed from Australia and returned to Pakistan, there is a real risk the applicant will suffer significant harm. That required the Tribunal to apply s.36(2A) of the Act, which provides that a person will suffer “significant harm” if:

   (a)the non-citizen will be arbitrarily deprived of his or her life; or

   (b)the death penalty will be carried out on the non-citizen; or

   (c)the non-citizen will be subjected to torture; or

   (d)the non-citizen will be subjected to cruel or inhuman treatment or punishment; or

   (e)the non-citizen will be subjected to degrading treatment or punishment.

8. Even though the Tribunal accepted there were two incidents in which shots had been fired that were intended to scare, but not otherwise harm, the applicant, it was reasonably open to the Tribunal not to be satisfied, for the reasons it gave, there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s being removed from Australia and returned to Pakistan, there is a real risk the applicant will suffer significant harm.

9. Ground 1, therefore, fails.

10. The second ground is:

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

11. In the particulars to this ground, the applicant claims the Tribunal assessed the risk of harm to the applicant by reference to publicly available material, and did not take into account or was unaware of the “actual ground situation”, which is much more violent, and that atrocities occur without their being published. For these reasons, it is claimed the Tribunal failed to understand the context of the applicant’s claims.

12. This discloses no jurisdictional error. The ground claims the Tribunal erred in its assessment of the situation in Pakistan, as it will be faced by the applicant. The ground does not suggest the applicant had put before the Tribunal material it did not consider. It was reasonably open to the Tribunal to rely on the material on which it did rely.

13. Ground 2, therefore fails.

14. The third ground is:

    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 by simply de-scaling the applicant’s evidence as insufficient to prove that he was a prominent member of the PTI or holding the view that there is general political tolerance in Pakistan and that killings and violence are isolated incidents as opposed to a general trend.

15. This ground in effect urges it was not reasonably open to the Tribunal to conclude the applicant did not have a well-founded fear of persecution in Pakistan, assuming it applied a correct understanding of the criteria for the granting of a Protection visa. For the reasons I have already given in connection with ground 1, it was reasonably open to the Tribunal to so conclude, and for the reasons it gave.

16. Ground 3, therefore, fails.

17. The fourth ground is:

    The applicant was not afforded natural justice.

    Particulars

    The applicant believes that he was not afforded a fair hearing. The Honourable Member’s judgment was clouded by his own pre-conceived beliefs as to whether the applicant faces a real risk that he will suffer significant harm or that the applicant’s fear of being killed, imprisoned or harmed is valid. In doing so, the Honourable Member allowed his view to prevail over the applicant, taking the power vested in him to come to conclusions which are detrimental to the rights of the applicant. The applicant feels unheard, and justice unavailable and prevented

18. In this ground, the applicant in effect relies on the adverse findings of the Tribunal as a ground for contending the Tribunal had preconceived views about the applicant’s claims. In considering this ground it would be useful to refer to the following passage from the judgment of von Doussa J in SCAA v Minister for Immigration and Multicultural Affairs;[18]

    In my opinion it will be a rare and exceptional case where actual bias can be demonstrated solely from the published reasons for decision. Reasons for decision reflect conclusions reached at the end of the decision making process, and if the decision is against the party complaining, the expression of adverse findings on credit and fact are an inevitable part of the expression of the reasons. The mere fact of adverse findings at the end of the matter give rise to no inference as to the state of mind of the decision maker before and whilst the matter was under consideration, nor of prejudgment of the issues that fell for decision. Even where it is possible to show that the adverse findings or some of them are contrary to the evidence or unreasonable, or that the reasoning process is hopelessly flawed, that without more is unlikely to demonstrate that the decision maker had embarked on the case with a closed mind, not open to persuasion. However, where the party alleging actual bias can point not only to an adverse judgment containing demonstrable error but also to conduct by the decision maker antithetical to that party's interests such as a hostile attitude throughout the hearing . . . or a failure to enquire into and to obtain readily available and important information relating to central matters for determination . . . an inference of actual bias by prejudgment might then be more readily drawn. But even then the circumstances are likely to be rare and exceptional that the combination of factors and circumstances will clearly prove actual bias.

    [18] [2002] FCA 668 at [38]

19. The applicant does not allege the Tribunal member exhibited hostile behaviour towards the applicant, or in any other conduct during the hearing or before the Tribunal made its decision. In those circumstances, there is no basis for concluding the Tribunal had preconceived ideas about the applicant’s case. And there is nothing in the material that could give rise in the mind of a fair minded lay observer of a reasonable apprehension that the Tribunal member approached its task with a preconceived view of the applicant’s case.

20. Ground 4, therefore, fails.

Disposition

1. I propose to order that the application be dismissed. I will also order that the Administrative Appeals Tribunal be substituted for the Tribunal as second respondent.

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

Date: 26 August 2016