SZKFX v Minister for Immigration and Citizenship

Federal Court of Australia|2008-08-13|Before: Reeves J

INTRODUCTION 1 This is an appeal against a judgment of Federal Magistrate Nicholls delivered on 28 March 2008, which dismissed an application for judicial review of a decision of the Refugee Review Tribunal ('the Tribunal'). The Tribunal's decision was delivered on 1 February 2007 and affirmed a decision of a delegate of the first respondent to refuse to grant a protection visa to the appellant.

BACKGROUND - SUMMARY OF FACTS 2 The appellant is a citizen of Pakistan who came to Australia on 'shore leave' from his employment on 14 June 2006. The appellant lodged an application for a protection visa two weeks later, on 29 June 2006. A delegate of the first respondent refused that application on 28 September 2006. The appellant applied to the Tribunal for a review of that decision on 11 October 2006. 3 In his protection visa application, the appellant detailed his claim to fear persecution in Pakistan due to his nationality, his membership of a particular social group and his political opinion, stating that he had always fought to have his sisters educated and that his liberal views eventually brought him to the attention of Islamic fundamentalists. The appellant stated that he had been involved in the Roshni Welfare Society and that he had been targeted by extremists in Swat (his home area). According to the appellant, his video shop was burned down in 1998 to "teach him a lesson" and he was violently attacked on a number of occasions. He moved to Karachi to avoid harm. However, in 2005 he claimed he was again targeted by the same groups. 4 The appellant further claimed that he had sought help from the Pakistani authorities but on two occasions the police had allegedly told him "to keep his mouth shut and nothing would happen". On a further occasion, although the police took a report, they said they "could not do anything because of the political power and influence these radical clerics carry". The appellant stated that he obtained employment on an Arabian livestock ship and he failed to return from shore leave when it docked in Fremantle.

THE TRIBUNAL'S DECISION 5 The appellant attended a hearing before the Tribunal on 22 November 2006 and presented evidence, including his passport. The Tribunal's Decision Record makes reference to: a letter apparently substantiating the appellant's work for the Roshni Welfare Society; a membership card for that Society; a similar letter from the Union Council Barabandai Swat; a third letter apparently from the Swat District Police; a document referred to as an incident report; a translation of a membership card for the Pakistan Justice Movement; and a translation of an article about the murder of the social justice activist the appellant had referred to as his 'mentor'. At the hearing the appellant confirmed that he had obtained these documents for the purposes of his application for protection. 6 A submission lodged by the appellant's solicitor on 30 October 2006 reiterated that the appellant feared harm on the basis of his political opinion and on the basis of his membership of a particular social group. It was submitted that the appellant's shop was "attacked and burned in 1998 by religious fanatics who opposed him because they believed the western videos he rented out undermined traditional Islamic religious values" and that the appellant was assaulted seriously in 2005, "after he became involved in a marriage dispute between two families". However the submission goes on to state that "the persecution suffered by [the appellant] he attributes to his social work activities ...". 7 The Tribunal records that it asked the appellant detailed questions about his work history and his travel prior to coming to Australia, including the amount of time he spent doing social justice work and the amount of time he lived in Swat. When the Tribunal asked the appellant why he returned to Swat if he feared he would suffer harm there, the appellant's explanation was "the real danger happened in 2005". In its 'Findings and Reasons', the Tribunal did not accept that the appellant had feared persecution in Pakistan at any time before 2005, as he had continued to reside in Swat between 1998 and 2005 despite the alleged threat to his safety, and he was unable to reasonably explain why he had returned there from Karachi in 1998 within six months of the destruction of his video shop. 8 Due to inconsistencies in the appellant's account and documents, the Tribunal found that he was not a witness of truth and did not accept his claims to have been involved in welfare work, or to have been a member of the Roshni Welfare Society. It found that the latter claim was "invented … to assist his application for protection". Further, the Tribunal noted that the appellant claimed to have worked for welfare groups from approximately 1997, but conversely he claimed to suffer no harm from his welfare work or political involvement until 2005. It also noted that the appellant had admitted that his video business had been burned down, not because of his claimed political views or membership of a particular social group, but because he was "dealing in videos and was wrongly influencing the community". The Tribunal found that the appellant's claim that he went into hiding in Karachi in August/October 2005 was not plausible and instead found that the appellant was living there and awaiting contact for work on his ship (as in fact occurred in October 2005). 9 The Tribunal accepted that the documents submitted by the appellant "say what he claims they say" however, because it found that he was not a witness of truth, the Tribunal concluded that the documents "… including the police reports, the letters dated 1 April 2005 and 10 August 2005 and the ID cards, are not reliable evidence of the facts in those documents". Taking all of its concerns into account, the Tribunal was not satisfied that the appellant held a well-founded fear of Convention-related persecution in Pakistan and it affirmed the delegate's decision.

THE FEDERAL MAGISTRATE'S DECISION 10 The appellant was given leave to file the amended application for judicial review which he filed in the Federal Magistrates Court on 15 June 2007. He also filed an outline of written submissions on 4 February 2008. Despite having received the benefit of legal advice from a panel member, he did not seek to put a transcript of the Tribunal hearing before the Federal Magistrate (see [2008] FMCA 292 at [21]-[22]). The appellant appeared at a hearing before Federal Magistrate Nicholls on 19 February 2008 and made additional submissions. The Federal Magistrate's reasons note that "[t]o some extent the two sets of complaints appeared to overlap, although the written submissions seek to add to the list of grounds or complaints" (see [2008] FMCA 292 at [15]). His Honour set out his understanding of the appellants "grounds" or complaints (including the additional grounds raised in the written submissions), in a format largely adopted from the first respondent's submissions, as follows (see [2008] FMCA 292 at [16] and [17]): 1) The Tribunal "erred in adopting an unduly harsh approach" to the question of whether the applicant had a well-founded fear of persecution. This may also involve a complaint that the Tribunal was biased in that it sought to achieve a predetermined outcome rather than bring an open mind to the proceedings; 2) The Tribunal identified the wrong issue, asked the wrong question, failed to consider relevant material, and relied upon irrelevant material; 3) A denial or procedural fairness when the Tribunal "totally discarded the Applicant's oral and written evidence"; 4) The Tribunal did not act judicially because it disregarded the applicant's evidence; 5) A denial of procedural fairness because the hearing was not conducted in a "judicial manner and environment"; 6) The Tribunal "failed to afford sufficient weight to the" applicant's oral and written evidence; 7) The applicant did not understand the Tribunal's questions at the hearing and was not able to give proper answers as he was "very much confused and depressed"; 8) The Tribunal exceeded or constructively failed to exercise relevant consideration as to whether there was a real chance of fear of persecution (to be understood as a complaint relying on an alleged failure to apply s.91R(1)(b) and (c) of the Act); 9) The Tribunal breached s.424A of the Act; 10) The Tribunal "failed to understand the risk of persecution" in Pakistan as claimed by the applicant; and 11) The Tribunal "designed and asked" questions at the hearing in such a way that the applicant "was confused" and "could not give response properly". 11 Furthermore, because his Honour inferred that the appellant's amended application and written submissions appeared to allege bias or bad faith on the part of the Tribunal, he decided to deal with those allegations as well - this was included in his Honour's consideration of ground 2. 12 In his comprehensive and detailed decision, Federal Magistrate Nicholls considered the Tribunal's decision by reference to each of the grounds and allegations set out above. In summary, his conclusions were as follows: a) In relation to Ground 1 Based on the only account of what occurred at the Tribunal hearing, ie the Tribunal's own account in its Decision Record, his Honour found that the Tribunal had "adopted a line of questioning which it felt was required to enable it to undertake the task which it was jurisdictionally required to conduct". Insofar as the appellant's complaint was that the Tribunal's questions were focused on the appellant's actions and did not focus on the motives of those from whom he claimed to fear harm, relying upon authorities such as Ram v Minister for Immigration & Ethnic Affairs & the Refugee Review Tribunal (1995) 57 FCR 565; [1995] FCA 433, Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 and Minister for Immigration and Multicultural Affairs v Haji Ibrahim (2000) 204 CLR 1, any plain reading of the Tribunal's account of what occurred at the hearing revealed that the Tribunal had properly focused on the motivation of those from whom he said he feared harm, namely they were opposed to the applicant's liberal views and the welfare work that the applicant said that he had undertaken. However, because the appellant was ultimately unable to convince the Tribunal as to the credibility of his claims that "he had in fact conducted welfare work, was active politically, and was perceived to hold a particular political opinion by Islamic extremists", the motivations of the Islamic extremists were rendered irrelevant. b) In relation to Ground 2 Without particulars, his Honour found this complaint was meaningless. However, from his review of the materials, his Honour concluded that the Tribunal had made its decision based upon the evidence and any allegation of jurisdictional error must therefore fail. Further, any attack on the Tribunal's finding that the appellant did not give truthful evidence was an attempt at "impermissible merits review", referring to Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259. Finally, his Honour found that the findings in relation to the appellant's credibility were findings of fact which were matters for the Tribunal 'par excellence', referring to Re The Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407 at [67] per McHugh J. In so far as this ground constituted an allegation of bias or bad faith on the part of the Tribunal, his Honour observed that any such complaint must be clearly articulated and supported by evidence and no such evidence was before him, such that this allegation could be sustained. His Honour referred to a number of authorities including Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17; (2001) 205 CLR 507 at [27 - 32], SBBS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 361, (2002) 194 ALR 749 at [43 - 44] and Minister for Immigration & Multicultural & Indigenous Affairs v NAOS of 2002 [2003] FCAFC 142 at [21] c) In relation to Grounds 3 and 4 His Honour found that the Tribunal's findings were that there was "no plausible evidence" that the appellant had suffered persecution in his country for any Convention-related reason. These findings were open on the evidence before the Tribunal and, as with the Tribunal's findings in relation to the appellant's credibility, were matters for the Tribunal 'par excellence' (see above). In so far as this ground alleged a breach of s 424A or s 425 of the Migration Act 1958 (Cth) ('the Act'), the appellant failed to make out that claim because the "information" was information provided to the Tribunal by the appellant himself, referring to SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [17] - [18] and [21]; (2007) 235 ALR 609. Further the Tribunal had invited the appellant to a hearing pursuant to s425 of the Act and made its concerns about the appellant's credibility clear to him at various points during that hearing. Here his Honour relied upon SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 at [47]; (2006) 228 CLR 152. d) In relation to Grounds 5 and 6 Because the appellant had not, despite being offered the opportunity to do so, placed before his Honour any transcript of the Tribunal hearing, based upon what was before him, specifically the Tribunal's Decision Record, he found this complaint could not be made out. e) In relation to Grounds 7 and 11 The appellant had been provided with an interpreter at the Tribunal hearing and there was "nothing in the material before [his Honour] to indicate that [the appellant] was unwell at any time before the Tribunal, let alone that he was confused and depressed or that he was not able to properly answer the Tribunal's questions". In reaching this conclusion his Honour relied upon the observations of Justice Nicholson in WAHU v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 890 at [34] - [40]. f) In relation to Ground 6 His Honour found the Tribunal was entitled to give such weight to the appellant's evidence as it saw fit, referring to Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464 at [27]. g) In relation to Ground 8 Without particulars, his Honour also found this complaint was meaningless. However, on a plain reading of the material before his Honour, he could not detect any basis upon which this complaint could succeed. h) In relation to Ground 10 Based upon the materials before his Honour, he concluded that the Tribunal considered all aspects of the appellant's claims, had regard to the relevant evidence and ultimately found that the appellant was not a witness of truth. This finding was a finding which was open to it on the evidence. His Honour could not therefore detect any misapplication of the relevant law, including s 91R of the Act, in the Tribunal's consideration of the central question: "whether the applicant had a real chance or well founded fear of persecution for a Convention reason". To the extent that the Tribunal found that the documents provided by the appellant were "not reliable evidence because of the adverse credibility finding it had already made" in relation to the appellant, his Honour found that finding was consistent with the decision in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte S20/2002 [2003] HCA 30; (2003) 198 ALR 59. Furthermore, this was not a case where there could be any issue about the genuineness of the documents because the documents did not assist the appellant where his credibility had already been comprehensively rejected, relying upon, for example, WACO v Minister for Immigration and Multicultural Affairs (2003) 131 FCR 511; [2003] FCAFC 171 and WAJR v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 204 ALR 624; [2004] FCA 106. i) In relation to Ground 9 As noted above (see ground 3 and 4), his Honour found that the "information" on which the Tribunal relied to make its decision was all information provided by the appellant himself and therefore within the exception contained in s 424A(3)(b), as explained by the High Court in SZBYR (above). 13 In conclusion, his Honour found that "[n]one of the applicant's complaints as set out in the amended application, nor in his written submissions, reveal jurisdictional error on the part of the Tribunal". Accordingly, he dismissed the appellant's application for judicial review.

GROUNDS OF THE PRESENT APPEAL 14 The notice of appeal filed in this Court on 9 April 2008, raised two grounds which can be summarised as follows: 1. The Federal Magistrate erred by failing to hold that: the Tribunal made jurisdictional error in adopting an unduly harsh approach to the issue of the applicant's "well-founded fear" of persecution; that it failed to properly apply the "real chance test" and instead resorted to the "balance of probabilities and other types of tests"; and that it misapplied the Convention terms "well founded fear" and "refugee". 2. The Tribunal wrongly approached its questioning of the appellant from the perspective of his fear of the harm rather than addressing the motive of those threatening the harm. The Tribunal also denied the appellant procedural fairness in that it failed to conduct the hearing in a judicial and impartial manner and it "discarded" all of the appellant's evidence in making its decision.

THE CONTENTIONS 15 At the hearing before me on 23 July 2008, the appellant appeared in person, unrepresented, but assisted by an interpreter. Mr Cleary appeared for the first respondent. 16 The appellant had earlier filed an outline of written submissions. As was the case before the Federal Magistrate (see [2008] FMCA 292 at [15]), this outline of written submissions appears to overlap with the grounds of appeal in many aspects. Insofar as additional matters were included, they appear to constitute criticism of the Tribunal's fact finding role, for example: · The Tribunal totally ignored the day-to-day incidence of killing innocent people and Human Rights activists by the extremist Muslim groups in Pakistan. · The appellant claims that he has a real fear of the extremist Islamic organisations which have targeted him. If he is compelled to go back to his country, Pakistan, it is almost sure the extremist Muslims will kill him. Noting that the grounds of appeal are not particularised, the only additional matter that appears to be raised in this outline is the allegation that: the Tribunal designed and asked the questions in such a way that the appellant was confused and could not respond properly. This is similar to the complaint raised in ground 7 before the Federal Magistrate (see [10] above). 16 In his oral submissions before me, the appellant appeared to be quite distressed. He repeatedly stated his fear that he would be killed by extremist Muslims if he were compelled to return to Pakistan. He stated that the Tribunal's decision was not correct and did not properly consider his evidence. He then said that he wanted to submit further evidence to this Court. I pointed out to the appellant that this was a very unusual course; however I adjourned the hearing briefly to allow Mr Cleary to consider the appellant's proposed further evidence. 17 Upon resuming the hearing, Mr Cleary informed me that the evidence constituted 12 newspaper articles, some dated October and November 2007 and others dated February and March 2008. Obviously, all of these newspaper articles post-dated the Tribunal hearing of 22 November 2006 by many months. Mr Cleary said the articles generally related to the current situation in Pakistan. Mr Cleary also told me that the evidence included a compact disc containing a video showing people being beheaded in Pakistan. He emphasised that he had not viewed this video, but had relied on the appellant for this information. In summary, Mr Cleary submitted that this new evidence was not relevant to any issue in this appeal and should not be accepted. In the circumstances, I accepted this submission. 18 I attempted to explain this to the appellant. I told him that this Court does not have the power to conduct a merits review of the Tribunal's decision nor any power to set aside the Tribunal's decision based upon evidence about the situation in Pakistan following the Tribunal's hearing. With Mr Cleary's assistance, I drew the appellant's attention to provisions of the Act that may allow him to apply (to the Minister) to be allowed to make a further application for a protection visa (s 48B), or for a decision substituting the Tribunal's decision (s 417). 19 I then asked the appellant whether he wished to proceed with this appeal. He elected to do so. He then made some further oral submissions which focussed almost exclusively upon the current situation in his home area of Pakistan. He concluded with a further repetition of his claim that he was certain that he would be killed if he were to return to Pakistan. 20 The first respondent had also filed an outline of written submissions. In summary, that outline put forward the following submissions: · None of the grounds of appeal disclose any error on the part of the Federal Magistrate, nor do they disclose any jurisdictional error on the part of the Tribunal. · Ground one is not particularised and without further particulars is largely meaningless. · Notwithstanding the lack of particularisation, the Federal Magistrate had properly considered all the appellant's complaints relating to the same or similar matter and correctly rejected them, including the appellant's allegations of bias or apprehended bias and the appellant's allegation that the Tribunal had focussed on his conduct rather than the motives of those who sought to harm him. · Further, the first ground of appeal must be rejected because the Tribunal ultimately rejected the appellant's claims because it was not satisfied as to his credibility and this factual finding was open to the Tribunal. · Finally, a fair reading of the Tribunal's decision does not reveal that the Tribunal misunderstood in any way the proper test for determining a refugee claim under the Act. To the contrary, it was submitted that it demonstrated that the Tribunal had a proper understanding of that test. · In relation to ground two, it was submitted that the Tribunal ultimately decided that he was not a witness of truth and did not accept as true any of the oral evidence given by him. Further, so far as the appellant's documentary evidence was concerned, the Tribunal correctly found that because of its adverse credibility findings, the documents the appellant submitted were not reliable evidence of the facts contained in those documents and this was a factual finding open to the Tribunal 21 In his oral submissions before me, Mr Cleary emphasised the point made in the outline of written submissions that Tribunal had rejected the appellant's claims on credibility grounds and this was a finding of fact that was open to the Tribunal on the evidence. He submitted that there was therefore no error in the Tribunal's decision, let alone jurisdictional error.

CONSIDERATION 22 I entirely agree with the Federal Magistrate's observation (see [2008] FMCA 292 at [49]) that "the determinative issue in this case was the Tribunal's rejection of the plausibility of the applicant's evidence - both oral and documentary". 23 The Tribunal's decision on the appellant's credibility is encapsulated in the following paragraph of its Decision Record: The Tribunal does not accept that the applicant feared harm in his country for any Convention reason, either in his town of Swat or anywhere else before 2005. It is clear from the applicant's own oral evidence to the tribunal that he was living and working in his country returning to his town to live over the period 1998 until 2005, including after he did his seaman's training in 1998 and after he travelled overseas on two occasions in the course of his duties as a merchant seaman. In the Tribunal's view these facts are not consistent with his claims that he feared harm in Pakistan during this time. When the Tribunal asked him why he returned to his country and to his town if he was afraid of harm he gave no reasonable explanation and … then said the real danger happened in 2005. The Tribunal does not accept as true that there was a fire in the applicant's shop and he went to Karachi in 1998 for the reasons that he claims because he was afraid of harm. He in fact lived, worked in the ink factory and did his seaman's training in Karachi and afterwards returned to his town in Swat after six months according to his evidence. He did not give reasonable explanation to the Tribunal of why he returned to Swat after six months if he left there because he feared harm there arising out of the fire".(emphasis added) 24 From this paragraph it is quite clear that the Tribunal found that the appellant did not fear harm for a Convention-related reason because, if he genuinely did fear that harm from Muslim extremists in Swat, or in Pakistan generally, as a result of his welfare work or his political beliefs, he would not have constantly returned to Pakistan and his home town of Swat between 1998 and 2005. Based upon this seminal conclusion as to his credibility, the Tribunal rejected the appellant's claims one by one. In particular, it rejected his claims about being a welfare worker, and being a member of either the Roshni Welfare Society or the political organisation to which he claimed he belonged. 25 My emphasis above highlights the fact that the Tribunal relied upon the appellant's own account of his movements to and from Swat; and in and out of Pakistan, over that period, to reach this adverse conclusion on his credibility. It is a conclusion that was therefore clearly open on the evidence. That being so, it could not provide the basis for a 'no evidence' error of law. Conversely, it constitutes a factual finding that was squarely within the Tribunal's fact finding jurisdiction. It was a matter for the Tribunal "par excellence", as the Federal Magistrate observed. 26 Furthermore, once the determinative effect of this conclusion is appreciated, it soon becomes apparent that the appellant's complaints about: the Tribunal's unduly harsh approach to the issue of his "well-founded fear" of persecution; or the Tribunal's approach in designing and asking questions in a way that confused him; or its approach to the "real chance test" and the Convention terms "well founded fear" and "refugee"; or its approach in questioning the appellant from the perspective of his fear of the harm rather than addressing the motive of those threatening the harm; all become irrelevant. This is so because the Tribunal concluded as a matter of fact that he held no such fear, based upon the view it took of his own evidence. 27 As to the appellant's complaint that the Tribunal denied him procedural fairness by discarding all of his evidence, if this is taken to be a complaint that it did not alert him to its concerns about his credibility, I agree with the Federal Magistrate (see [12(c)] above) that it is apparent from the Tribunal's Decision Record (being the only material available) that the Tribunal did alert the appellant to its concerns. 28 On the other hand, if this is taken to be a complaint that the Tribunal wrongly rejected his documentary evidence, I agree with the Federal Magistrate (see [12(h)] above) that the Tribunal concluded that this was a situation where the appellant's credibility was damaged beyond repair and his documentary evidence could not therefore assist him, as the following paragraph from the Tribunal's Decision Record clearly shows: The Tribunal accepts that the documents in the applicant's language that he gave it say what he claims they say, however, given that the Tribunal finds that the applicant is not a witness or truth, it finds that these documents, and also the documents that have been translated, including the police reports, the letters dated 1 April 2005 and 10 August 2006 and the ID cards, are not reliable evidence to the facts in those documents. 29 For these reasons, none of the grounds of appeal has been made out and I am unable to detect any error in the Federal Magistrate's review of the Tribunal's decision. This appeal must therefore be dismissed. I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Reeves.

Associate: Dated: 13 August 2008 Solicitor for the Appellant: In person

Solicitor for the First Respondent: Australian Government Solicitor

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