SZNJQ v Minister for Immigration and Citizenship

Federal Court of Australia|2010-02-08|Before: Rares J

REASONS FOR JUDGMENT (REVISED FROM THE TRANSCRIPT) 1 This is an appeal from a decision of the Federal Magistrates Court dismissing an application for constitutional writ relief in respect of a decision of the Refugee Review Tribunal refusing the appellant's application for a protection visa: SZNJQ v Minister for Immigration and Citizenship [2009] FMCA 1072. 2 The appellant is a citizen of Pakistan, who arrived in Australia immediately prior to the World Youth Day events in July 2008. The next month he applied for a protection visa pursuant to s 36 of the Migration Act 1958 (Cth). A delegate of the Minister refused that application in late November 2008. The appellant sought a review of that decision by the tribunal. On 27 February 2009, the tribunal affirmed the decision of the delegate not to grant a protection visa. He then applied to the Federal Magistrates Court for constitutional writ relief, which was refused and brings this appeal from that decision.

The appellant's claims 3 The appellant claimed in his application for a protection visa to be a Christian, who had been educated in and lived in Karachi, Pakistan. He claimed to be an adherent of the Church of Pakistan, which he said was substantially similar to the Church of England and to have been an active member of that church, participating in youth and Sunday school activities. He claimed he had been married in 2001. The appellant said that his work was in a graphics and typing laboratory that he conducted at home and that he used his skills in that regard to benefit the congregation, Christian community and the parish. In addition, he claimed to have obtained a full-time job as a graphics designer in 2002 with a printing press company. He claimed to have been involved with a weekly newspaper published by the Catholic Archdiocese of Karachi and that the chief editor of the Catholic paper decided to take him with other persons to Sydney for World Youth Day in 2008. He claimed that his visa application was submitted to the High Commission in Karachi on 10 April 2008. 4 The appellant claimed that he had been asked by an author to typeset a book in the Urdu language entitled "The Truth about the Holy Bible". He claimed that he completed the job and that the book was launched on 19 April 2008. The appellant contended that the book had been written by its author to confront a common statement by some Muslims that the Bible had been changed. In essence, the appellant asserted that by May 2008 some Muslims had become upset and very angry because the book had references from the Quran that allegedly supported the authenticity of the Bible and also contained a particular passage concerning the former president of Iraq, Saddam Hussein. 5 He claimed that the book had stated that Saddam Hussein had vanished because he had opposed the Bible. The appellant claimed that that statement had upset many Muslims because they considered him to be a hero whose acts and statements had been done or said according to the Quran. The appellant claimed that the book was considered by some Muslims to be a threat to the Islamic faith. He claimed that a group of three people approached the author demanding that he hand over all the books or for him to get ready to face the consequences of his refusal. He claimed that the author had told those persons that he would give them all the remaining copies of the book the next day, but instead of doing so the author went into hiding immediately and had not been seen again. 6 Following that incident, the appellant claimed these persons were more upset and started to look for him as the composer and designer of the book, in which his role had been acknowledged. He claimed that they came to his house inquiring about him, but he was not at home and his family was scared and contacted him advising him not to come home. He claimed that these persons, subsequently, made a number of visits to members of his family and he was told by his parents not to come home. He claimed that his family was scared to report the incident to the police as that might be seen as a challenge to this group and that, indeed, some terrorists had attacked police in Lahore earlier in 2008. 7 He claimed that when he required his visa to travel to Australia on 15 May 2008 he remained in hiding until he left for Australia and arrived in Sydney on 11 July 2008. After he arrived, he claimed to have inquired about the situation in Karachi and was advised by his parish priest not to come back as it was not safe for him. He claimed that he was scared to return home because he would be targeted. 8 In support of his claim, the appellant provided a number of documents relating to his membership of the Christian Church and a letter from the parish priest dated 14 July 2008 referring to the appellant's role in typesetting the book and his facing, "… some problems from Muslim communities, so it is not possible for him to live in this country." The appellant also provided a number of newspaper reports of violence by terrorists in support of his application for a protection visa.

The delegate's decision 9 The delegate interviewed the appellant and identified his claims. The delegate noted that although the appellant claimed to be a Christian he had demonstrated minimal commitment to his claimed religion in Australia, having stated at the interview that he had attended church only once since arriving, although he claimed to continue to pray at home each morning and night. 10 The delegate considered the interview and other material put by the applicant in support of the application, but was not satisfied that he feared persecution in Pakistan because he was a Christian or because of any harm he feared from Muslims as a result of his involvement in the typesetting of the book. The delegate observed that it was unusual that the appellant had claimed to have gone into hiding from about 5 May 2008 and to have received his visa to enter Australia on 15 May 2008, but not to have left Pakistan until July 2008. The delegate noted that while the appellant claimed that he was planning to travel to Australia as part of a group in July 2008, he considered that if the appellant had genuinely feared being harmed in Pakistan he would have attempted to depart earlier, namely shortly after being issued with the visa, rather than remaining for a further two months when he was in fear of his life. 11 The delegate also observed that the appellant had said that his family continued to attend their church in Karachi and that he had been willing to leave his wife and children behind in Pakistan. The delegate considered that these factors suggested that it was unlikely that the appellant genuinely feared harm for his claimed reasons. In addition, the delegate accepted that while it was possible that some extreme Muslims in Pakistan may have had the claimed negative reaction to the contents of the book, the harm which the appellant claimed to have feared was very localised and that on the appellant's claims at the interview, only 1,000 copies of the book printed. 12 The delegate had not been able to find any information about the book himself. He also found that the appellant had continued to attend at work in another part of Karachi from the time his claimed problems began until he left Pakistan. He found that to be a further indication that any problems that the appellant may have encountered were very localised to his home neighbourhood in Karachi. He found that the appellant was able to live elsewhere in Karachi and continue to travel to work and work there each day without attracting any significant adverse attention or experiencing any problems. Accordingly, the delegate was satisfied that relocation was a viable means by which the appellant could avoid persecution and that it was not unreasonable for him to do so.

The tribunal's decision 13 The tribunal conducted a hearing in which it canvassed the appellant's claims with him. In its decision record, the tribunal set out a summary of the interview with the delegate. It noted that before the tribunal the appellant had chosen not to swear on the Bible. It recorded his claim to rely on the Convention ground of religion. 14 During the course of the appellant's evidence to the tribunal, it canvassed with him, among other things, his knowledge of the book launch and his non-attendance there. It put to him that in his interview with the delegate he had said that he did not know the exact location of the book launch whereas the appellant had told the tribunal previously that the book had been launched in the street in which he lived. He said that he had forgotten about the invitation given to him by the author to attend the launch, but that he did not have time to go in any event. The tribunal reminded him that at the interview with the delegate the appellant had said that the book had been launched in a street near the church. It questioned him as to why he did not know the exact location if he had received an invitation. He told the tribunal that he had not been told the location of the launch beforehand, but later on he had heard that it had been launched in the street. 15 The tribunal also raised with the appellant the question why he delayed leaving Pakistan for about two months following his receipt of the visa. He responded that he did not have sufficient funds to travel to Australia. But, the tribunal then reminded him that in the interview with the delegate he had not said anything about money, but had said that he was waiting for the group to travel to Australia in July. The appellant told the tribunal that he could not tell the delegate the real reason at the time because he did not know that he had to tell him about the money. He went to say that the tribunal had taken more time in the hearing dealing with his claims. He said he had not been asked many questions by the delegate. The tribunal responded that it had some difficulty accepting that the appellant could not arrange funds to help him leave Pakistan. Its reasons recorded that the appellant then said that he had been thinking during the hearing that he should tell the truth. 16 The tribunal also raised with the appellant the issue of his being able to continue to attend at his workplace, despite it being easy for persons targeting him to track him there after the alleged threats had been made. He told the tribunal that these persons could not find him. The tribunal questioned the appellant about the discrepancy that, although the persons he alleged had threatened him, had come face-to-face with the author they had done nothing more than request the author to deliver up the copies of the books. The appellant responded that they posed threats to him when the author did not have the books. 17 In the findings and reasons section of its decision record, the tribunal noted that it had taken into account the appellant's claims in the protection visa application, his evidence during the interview with the delegate, his evidence before the tribunal and the other documents he had provided to the Department and the tribunal in support of his claims. But, the tribunal not find him credible on some of the key aspects of his claims. 18 The tribunal accepted that the appellant was a Christian from Karachi, and an active member of his church. It found he was employed as a graphic designer by the printing press company. It accepted that the author had given him handwritten pages and asked him to typeset those in Urdu. It found that the appellant's name and occupation as graphic designer was included in the book. But, it did not accept that the appellant had been targeted by Muslim fundamentalists because he had been involved in the production of the book, or that the author of the book itself had been targeted, as he had claimed. It accepted that the appellant's brother had been the victim of an assault in November 2008 by persons unknown, but it was not satisfied that the brother was the victim of that assault because of the appellant's involvement in the book. 19 The tribunal set out four substantial matters that had led it to the conclusion that the appellant was not a truthful and credible witness. These were, first, that during his evidence before the tribunal the appellant had claimed the book had been launched on 19 April 2008 but his evidence concerning the launch did not satisfy it that the book had been launched in his street, or that he had been invited to the book launch. 20 Secondly, the tribunal found that although the author had not been harmed in any way when, about 10 days after the book launch, he allegedly was approached by the three persons to hand over copies of the book and threatened, yet the appellant had claimed that those same persons would seriously harm or kill him if they found him, and that these men had been to his home looking for him. The tribunal found that the appellant's role in the production of the book would not attract the adverse attention the appellant claimed. 21 Thirdly, the tribunal found that it did not accept that the appellant left his home on 5 May 2008 before the men had started looking for him. It found implausible that he would continue to attend his workplace, given his claim to be in fear of his life at the time. The tribunal found that if the persons making the threats wanted to locate the appellant, they could easily have found him before he departed Pakistan. 22 Fourthly, the tribunal found that the appellant's explanation that he did not have the funds to leave Pakistan for about two months after he received his visa was unconvincing. The tribunal found that if he had wished to leave sooner than he did, he would have managed to secure financial support in order to do so. The tribunal then stated that: "When this issue was discussed with him during his departmental interview, he did not mention anything about a lack of funds and said that he had planned to travel as part of a group." 23 In addition the tribunal found that his parish priest wrote his letter dated 14 July 2008 after being informed by the appellant's family of the claimed problems, as a result of which he included the reference to them in it. For that reason the tribunal placed no weight on the contents of the letter. The tribunal also did not accept a subsequent claim by the appellant that he would be forgiven by those he claimed were searching for him, if he converted to Islam. The tribunal found that the hearing had taken three hours and that it had spoken at length with the appellant and given him every opportunity to discuss his claims and any fears he might have. It was only after the hearing that the appellant made this later claim. The tribunal found that he had concocted it in an effort to strengthen his application. 24 The tribunal did not accept that the appellant had been targeted by fundamentalists because of his involvement in the typing or graphic design of the book, and did not accept that he or members of his family had been approached, targeted or harmed. It was not satisfied that he had left Pakistan because of fear of persecution or that he stood at any risk of suffering serious harm in the reasonably foreseeable future were he to return to Pakistan.

The trial judge's decision 25 The appellant relied on an amended application which also took the form of a submission before her Honour. From this, the trial judge distilled the following as alleged errors by the tribunal, namely that it had: · brushed aside documents that he had provided by way of evidence and his oral evidence where it did not take those into account; · failed to consider his general claim that he feared harm in Pakistan as a result of his Christian beliefs and activism; · referred to and recorded, the appellant's failure to take an oath on the Bible; · come to erroneous factual conclusions concerning relocation, recent country information and his brother's assault. 26 Her Honour then dealt with two matters of potential relevance to the claim for constitutional writ relief referred to by the Minister. First, the Minister raised a possible failure by the tribunal to refer to, or make findings about, the appellant's conduct in Australia for the purposes of s 91R(3) of the Act, and, secondly, a possible failure to comply with s 424 of the Act. The latter has since become irrelevant as a result of the decisions in Minister for Immigration and Citizenship v SZKTI (2009) 238 CLR 489 and Minister for Immigration and Citizenship v SZNAV [2009] FCAFC 109. 27 Last, her Honour raised the question of application of s 424A of the Act in relation to the tribunal's use of what the appellant had said in his interview with the delegate concerning the book launch and his reasons for not leaving for Australia earlier than he did. 28 As to the first ground, her Honour held that the tribunal did not believe the core factual claim of the appellant and so it was not necessary for it to refer to other matters. She found that the tribunal's reasons clearly dealt with his substantive claims and that in light of the nature of those claims, as clarified during the hearing before the tribunal and its findings in relation to his credibility, it was not necessary for the tribunal to go further than it did. I agree, for the reasons given by her Honour, that this was so: see also WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 at 641[46]-[47]. Secondly, her Honour found that because the tribunal had rejected the appellant's claim that his fears had arisen only after the incidents involving the book, it was not necessary to deal with the subsidiary claims of a general fear of harm as a result of his Christian beliefs and activism. I am unable to detect any error in her Honour's conclusion or her reasons. She was correct. 29 Thirdly, her Honour found that there was nothing in the tribunal's reasons or findings to indicate that the appellant's failure to take an oath on the Bible bore on its decision making processes. I agree with the reasons that her Honour gave. Fourthly, the appellant complained to her Honour of factual matters relating to the way in which the tribunal arrived at its findings concerning relocation, the consequence of recent country information and the assault on the appellant's brother. Each of these matters was a question for the tribunal to determine as a fact. Her Honour was unable to perceive, as am I, any jurisdictional error in the way in which the tribunal approached its factual findings on these issues. 30 Next, because the appellant did not rely on his Christian faith and church attendance in Australia to support his claim to fear harm in Pakistan, her Honour did not consider that any issue arose under s 91R(3) having regard to Minister for Immigration and Citizenship v SZJGV (2009) 238 CLR 642. 31 Lastly, her Honour discussed the use made of the interview with the delegate in the tribunal's reasoning process. The tribunal did not refer to the interview with the delegate in making its findings concerning the book launch. A fair reading of this part of the tribunal's decision record satisfies me that it relied only on the findings that it actually set out in [79]. Her Honour was correct to have come to that conclusion for that reason. She found too, that the tribunal had not misunderstood the appellant's evidence, as he had submitted, or failed to consider his claims in respect of the book launch, or otherwise fallen into jurisdictional error. I agree. 32 Her Honour found that in its discussion in the last dot point in [79] of its decision record, concerning the reason the appellant gave to for not leaving Pakistan earlier, namely a lack of funds. She concluded that the tribunal's reference to the omission of that explanation to the delegate during the interview had been no more than an observation that the evidence before the delegate and before it was inconsistent. This was because he had provided two differing explanations for his delay in leaving Pakistan. Her Honour considered that these matters fell outside an obligation to give clear particulars of any information that the tribunal considered would be the reason or part of the reason for affirming the decision that was under review in accordance with s 424A of the Act.

This appeal 33 In his notice of appeal, the appellant contended that the trial judge erred because: · her Honour failed to determine the actual harm with which he was faced and that she should not have upheld the decision of the tribunal; · he had submitted considerable number of documents to both the Minister and the tribunal, but these were overlooked and, because he had an arguable case, he should be allowed to submit more evidence. 34 In his written submission before me, which the appellant substantially addressed orally as well, he canvassed the factual findings of the tribunal. He complained that the tribunal's credibility findings were arrived at through jurisdictional error. He argued that even though he had not remembered the time of the book launch and had forgotten about it, this did not mean that the book launch had not occurred, as the tribunal found. He argued that the tribunal had failed to take into account his evidence during the interview with the delegate concerning the disappearance of the author. He contended that his contribution to the production of the book through typing and graphic design, would have been of much importance in the eyes of the fundamentalists seeking to punish him under the blasphemy laws of Pakistan. He complained that the tribunal should not have used its finding, that the appellant continued to attend his workplace and could have easily have been found there before he departed Pakistan, to reject his claims. Lastly, he complained that his failure to mention anything about a lack of funds during the interview with the delegate did not enable the tribunal to come to the conclusion that he would have been able to raise money earlier had he really been in fear of his life as he claimed. He claimed that he had been unclear as to the nature and purpose of the questions at the departmental interview and subsequently by the tribunal on this topic, and that he had not been given an opportunity to respond to any doubts the tribunal had or assumptions it made. 35 I am of opinion that the first ground of appeal is nothing more than an attempt to embark on a merits review of the decision of the tribunal. There is no substance in this. The role of the tribunal was to determine whether or not it was satisfied that the appellant was entitled to a protection visa on the material before it, in accordance with the provisions of the Act. I am not satisfied that any jurisdictional error has been identified in this ground of appeal, and I reject it. 36 The second ground of appeal complained of the failure of the tribunal to consider particular evidence. The appellant did not identify any relevant evidence referred to in that ground. It was a matter for the tribunal to weigh and select the evidence that it considered to be the reason or reasons why it determined to affirm the delegate's decision. There is nothing before me to indicate that it made a jurisdictional error in the way in which it approached its function. I reject this ground. 37 The first three arguments concerning the tribunal's credibility-based findings on the key claims of the appellant are in the same category of merits review. I am not satisfied that they reveal any error, let alone a jurisdictional error, in the way in which the tribunal approached its task. As I have noted, the tribunal referred expressly to the appellant's then claim that he planned to travel as part of a group and the absence of any reference to a lack of funds during his interview with the delegate and to his. During its recitation of what occurred during the course of the hearing in relation to this topic, the tribunal drew the appellant's attention to the difference between his explanation to the delegate to that he had given immediately beforehand to the tribunal. The tribunal also afforded the appellant the opportunity to explain that inconsistency. It told him after that explanation that it had some difficulty accepting that he could not have arranged funds to help him leave Pakistan. Immediately after that, it recorded that its questioning had resulted in the appellant discussing his obligations to tell the truth. 38 Without a transcript, it is not possible to ascertain whether or not the tribunal precisely complied with the provisions of s 424AA of the Act. That enabled it to put to the appellant orally clear particulars of any information it considered would be the reason or part of the reason for affirming the decision under review and to explain to him why that was relevant for the purposes of the review, giving him the opportunity to comment. Certainly, a reading of the tribunal's summary of the evidence suggests that something close to that process was followed. Given that the tribunal squarely raised with the appellant the substantial difference in explanations he had given to the delegate and to it for his delayed departure I am not satisfied that there was a failure to comply with ss 424AA or 424A. 39 Reading the tribunal's explanation of its fourth key finding for its lack of satisfaction with the appellant's credibility as a whole, I am not satisfied that the tribunal's reference to discussing the issue of the appellant's delay in leaving Pakistan during the interview with the delegate was the reason or part of the reason for affirming the decision under review. The reference appears to be merely an observation that was not essential to the tribunal's conclusion that if he had wished to leave sooner than he did, he would have managed to secure financial support in order to do so.

Costs 40 Having regard to the affidavit of Rohan John White, I am satisfied that it is appropriate to make an order fixing the amount of the Minister's costs under O 62 r 40C(4) of the Federal Court Rules at $3,300, as sought. The amount recoverable on a taxation under item 43H of schedule 2 of the Federal Court Rules for a migration appeal finalised after a final hearing is $5920. Mr White has indicated that the actual costs incurred by the Minister are estimated to exceed $4,400 on a solicitor-client basis, excluding the costs of the Minister's solicitor attending court today. I accept that evidence 41 For these reasons, I am of the opinion that the appeal should be dismissed with costs fixed as sought. I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares.

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