SZHAH v Minister for Immigration & Multicultural Affairs

REASONS FOR JUDGMENT 1 This is an appeal from a decision of a Federal Magistrate rejecting an application for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") refusing to grant a protection visa to the applicant. The grounds of appeal to this court are a condensed version of the grounds of the application to the Federal Magistrate, the errors ascribed to the Federal Magistrate being in substance the same errors as were alleged against the Tribunal. 2 The appellant is a Pakistani citizen who came to Australia on 2 March 2004. His claims have twice been to the Tribunal, the first of these being the subject of a successful appeal to the Federal Magistrates Court. 3 The grounds of appeal against the Federal Magistrate's decision are three-fold: first, that his Honour erred in finding that the Tribunal did not take account of relevant considerations which are then particularised; second, his Honour erred in finding that the Tribunal did not carry out its statutory duty, the essence of this complaint being that the Tribunal failed to discharge its duty bona fide, a grave and unsubstantiated allegation as I will later indicate; and, third, his Honour erred in finding that the Tribunal's decision was not irrational, illogical and based on an unwarranted assumption.

Background 4 It is sufficient for present purposes to refer to several parts of the Tribunal's findings and reasons to expose the subject of complaint on this appeal. The two principal claims made by the appellant was that he was an activist for women's rights and he was threatened by the Tehreek-e-Nafaz-e-Shariat-e-Mohammadi ("TNSM") for that reason. The TNSM is a proscribed organisation in Pakistan, its primary objective being the imposition of Shariat in Pakistan. Ideologically, according to country information, it is dedicated to transform Pakistan into a Taliban style State. The second claim related to the appellant sending his children to an English medium school which again was said to be a cause of fear of persecution by the TNSM. 5 In dealing with the appellant's case, the Tribunal expressed the view that significant aspects of his evidence were confused and inconsistent both internally and with the independent evidence. The Tribunal said the evidence lacked credibility. It did not accept that the appellant was a women's rights activist or that he was threatened by the TNSM prior to leaving Pakistan. The Tribunal was of the view that the applicant fabricated this claim in an attempt to create for himself the profile of a refugee. 6 It rejected the claim of women's rights activism in the following terms: "Firstly, the applicant is a forty-four year old man who has worked as a seaman since he was about twenty years old. The applicant's evidence indicated that as a seaman he spent significant periods of time at sea and therefore away from his community. In my view, the applicant's profile is not that of an activist. Secondly, the applicant's evidence indicated that he was unaware of any other organisations working in the area of women's rights either in Pakistan generally, or in the NWFP in particular. In my view, if the applicant were someone who was committed to the advancement of women's rights and had actively worked with other people to achieve that end, he would have at least some familiarity with some of the organisations working in this field. I am of the view that this would be the case even if the applicant were not working in a leadership capacity. Thirdly, the applicant's approach to the issue of women's rights was extremely simplistic. The applicant's evidence suggested that the only activity in which his group was engaged was talking to people about the lack of women's rights. The applicant appeared unable to suggest any other ways in which women's rights could be advanced. Even allowing for the applicant's lack of sophistication, I am of the view that if he had been genuinely engaged in the issue of promoting women's rights, he would show somewhat more awareness of what was being done or could be done to achieve this aim." 7 In support of his claim that he was persecuted by the TNSM, the appellant claimed that, in September 2003 members of that group came to his house wanting to kill him. It was his evidence that (i) that organisation had opposed him since the time he had been seriously involved in promoting women's rights (about five years previous to the alleged incident in 2003); and (ii) that he had been threatened by the organisation on many occasions. Of this the Tribunal observed that "if TNSM members or anyone else was opposed to him and wanted to kill him, it is implausible that they would wait for some five years before taking steps to do so. The appellant asserted that under Pashtun tradition they could take revenge on him in ten year's time". The Tribunal did not find this explanation convincing. The Tribunal gave an account of the incident in September 2003. It is clear, without setting out the details of it, that the appellant gave somewhat inconsistent versions of what happened at that incident which permitted him to escape detection by the TNSM members. It is unarguable, in my view, that there was not some change in his evidence, a matter to which I will return to below. 8 The appellant provided to the Tribunal documents which he said supported his case. The first of these, which related to his complaint to the police about the September 2003 incident, was contained in a copy of a First Information Report (FIR). Of this, the Tribunal said, "even if this is a genuine document, the fact that a report was made to the police about a particular incident does not mean that the incident in fact occurred". The appellant also provided what was said to be a letter from an official of a council in his home region whom he said he had known all of his life. The Tribunal dealt with this letter in the following way: "There is independent evidence before me indicating that there is a culture of patronage in Pakistan which can lead to such letters being written for a number of different reasons. The applicant did not disagree that this was the case. In the circumstances, I do not consider that these two documents constitute reliable evidence of the credibility of the applicant's claims, and I place no weight on them in this regard." 9 As noted above, the appellant also claimed fear of persecution by the TNSM on account of his sending his children and in particular a daughter, to an English medium school. The Tribunal noted that his children continued still to attend that school and took the view that if they had been harmed or threatened with harm, the appellant would have taken steps to move them to a safer environment. It concluded that in the circumstances the fact that the appellant chose to send them to that school did not of itself give rise to a well-founded fear of persecution for a Convention reason. 10 In sum, the Tribunal concluded: "Overall, I reject the [appellant's] claim that he was an activist for women's rights and the TNSM threatened him for this reason. I do not accept that the [appellant] had an association with human rights activists. I am of the view that the [appellant] fabricated these claims in an attempt to create for himself the profile of a refugee. I do not accept that the [appellant] was of adverse interest to TNSM members or to anyone else at the time he left Pakistan. While I accept that the [appellant] sends his children to an English-medium school, I am not satisfied that this gives rise to a well-founded fear of persecution for a Convention reason. As I do not accept that the [appellant] was of any interest to the TNSM at the time he left Pakistan, I am of the view that the chance that the [appellant] would face harm from TNSM members if he returned to Pakistan is remote."