SZVHO v Minister for Immigration and Border Protection

Federal Court of Australia|2016-12-14|Before: Burley J

The application for an extension of time within which to file the Notice of Appeal is allowed.
The appeal be dismissed with costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT 1 INTRODUCTION [1] 2 BACKGROUND [8] 2.1 The Visa application and the decision of the Delegate [8] 2.2 The Tribunal's decision [11] 2.3 The decision of the FCCA [20] 3 APPLICATION FOR AN EXTENSION OF TIME [23] 3.1 Introduction [23] 3.2 The proposed appeal [29] 3.3 Consideration [33] 4 DISPOSITION [49]

2.1 The Visa application and the decision of the Delegate 8 The appellant is a citizen of Pakistan, aged in his early 30s. He is married and his two sons and his wife reside in Pakistan. The appellant arrived in Australia on 15 June 2013 on a short stay business visa. He applied to the Department of Immigration and Citizenship (now the Department of Immigration and Border Protection) for the Visa on 26 July 2013. 9 The appellant essentially claims that he was raised as a Sunni Muslim, but converted to become a Shia Muslim and was an active member of a Shia student group. He claims that as a result of his involvement in the student group, and his conversion, he has been harmed and targeted by Sunni extremists. 10 On 7 March 2014 the Delegate refused to grant the Visa.

2.2 The Tribunal's decision 11 The appellant applied for a review of the Delegate's decision. The appellant's representative provided a written submission to the Tribunal in advance of the hearing and attended and presented arguments. The appellant appeared before the Tribunal at the hearing and gave evidence with the assistance of an interpreter who spoke the Urdu language. 12 On 29 September 2014, the Tribunal affirmed the decision of the Delegate not to grant the Visa. 13 The Tribunal recorded the following matters in relation to the application. The appellant claimed that he is a member of a Sunni family and has been a practising Muslim since birth. He learnt about the Shia branch of Islam from a friend, and was attracted to its teachings. He and his wife attended Shia meetings, accepted its ideology and adhered to its principles. His family advised him to keep his conversion secret as the Sunni majority had not accepted the Shia minority in Pakistan. The appellant joined a Shia organisation called Imamia Students Organisation (ISO) and he began participating in Majlises and rallies. 14 Terrorist groups came to know of the appellant's involvement in Shia organisations and one day some unknown people came to his home. They forced themselves in, and tortured the appellant and his family. They shouted at him that because of his conversion they would kill him and all of his family if he participated in any more rallies. The appellant filed a report at the local police station (Police Complaint), but the police did not act on it. Thereafter, the appellant started participating vigorously in activities for the welfare of the Shia community. 15 The appellant also claimed that a False Information Report was made against him at a local police station by a "so called" Muslim preacher, who alleged that he had committed blasphemy. The appellant was acquitted by a court, but following that incident he was attacked while riding a motorcycle with a friend. During the attack, shots were fired and the appellant's friend was killed on the spot. When he informed his family of the incident they advised him to leave the country. The appellant believes that he will be killed if he returns to Pakistan. 16 Set out below are two paragraphs of the decision record of the Tribunal that are of importance to the current application: [10] In support of the application, the applicant provided the following documents: First Information Report, dated 22 November 2012, referring to an incident whereby the applicant and his friend were shot at on 21 November 2012 and his friend died; First Information Report, dated 29 August 2012, naming the applicant as having committed an act of disgracing the honour of Sahaba; First Information Report, dated 4 July 2012, naming an incident which occurred at the applicant's home when six unknown persons broke into his home and beat him and threatened his family; Post Mortem Report, dated 22 November 2012, in relation to the death of [his friend]; "Legal Update", dated 25 September 2013, addressed to the applicant from [a firm], stating that the applicant should stay abroad to protect his life and that the situation for Shias in Pakistan has deteriorated. The letter states that the applicant is in danger because of his involvement in a student group and an "Anti-Shia banned Organisation" is targeting him. [11] The applicant also provided a statement from [SZH], stating that he knows the applicant and he comes from a Sunni family but began studying about the Shia sect in 2010 and began participating in the Shia Sectarian Organisation [ISO] and contributed to welfare work for Shias. A statement from the president of the [ISO], who states that the applicant has been threatened by the Sunni terrorist groups and his friend murdered, was also provided. The applicant also provided a report from the Imamia Students Group, "Attacks on Shia Muslims 2012", naming a terrorist who "committed murder on Mr Muhammad Jahangir enrolled member of ISO in which he was lucky saved but [the applicant's friend] was martry [sic]". The report states that "0" persons were killed and 1 was injured. The applicant also provided affidavits by [four named people, M, B, S and ZA], all attesting to the applicant's involvement in the [ISO] and his adoption of the Shia religion in 2010. They state that the applicant came to Australia after the dismissal of a criminal case against him in which he was falsely implicated and after the murder of his friend… 17 The Tribunal considered the claims advanced on behalf of the appellant but ultimately was not satisfied that he was a truthful witness or that he had given a truthful account of his reasons for leaving Pakistan and seeking Australia's protection. The Tribunal did not accept that the appellant had converted from the Sunni branch of Islam to the Shia branch of Islam, or that he was ever harmed as a result. The Tribunal considered that the appellant had left Pakistan for reasons entirely unrelated to those that he had advanced in his Visa application. 18 The Tribunal relied on five matters in particular in reaching this conclusion. First, it found that the reasons the appellant gave for deciding to become a Shia Muslim were vague and unconvincing. Secondly, his evidence of what he told his wife about his conversion, and her response, was unpersuasive. Thirdly, it found that the appellant's religious practices in Australia were inconsistent with his claims, since when asked, he told the Tribunal that he had attended a mosque only once since arriving in the country. Fourthly, the appellant's evidence about his involvement with ISO was unpersuasive in that he did not have any knowledge of the group's aims or any specific incidents that "inspired" rallies. Fifthly, his account of the incident that was the subject of the Police Complaint was inconsistent with the report itself. 19 For these reasons, the Tribunal did not accept that the appellant left Pakistan because he feared harm from persons who opposed his conversion. Importantly, in the context of the current application, the Tribunal did not accept that the documents the appellant provided to corroborate his claims were genuine or that they contained truthful information. As a consequence, the Tribunal affirmed the decision of the Delegate to not grant the Visa.

2.3 The decision of the FCCA 20 The appellant was self-represented before the FCCA and presented his arguments with the assistance of an Urdu/English interpreter. He relied on four written grounds as the basis for his application. Grounds 2 (denial of procedural fairness), 3 (failure to take full account of the gravity of the appellant's circumstances) and 4 (failure to comply with section 424A of the Act) are presently immaterial. However, it is relevant to record ground 1 as follows: The Tribunal constructively failed to exercise its jurisdiction; Particulars: The applicant provided documents to the Tribunal to corroborate his claims. The Tribunal failed to engage in an active intellectual process of these documents [sic]. The Tribunal ultimately gave the documents no weight on the basis of credit findings. It was an error for the Tribunal to place no weight on the documents without engaging to [sic] the contents of these documents. It was an error for the Tribunal to assess the applicant's credit without first assessing whether the substance of the documents corroborated his claims. 21 The primary judge considered the decision of this Court in WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 74; (2004) 80 ALD 568 (WAIJ) at [27] and Minister for Immigration and Citizenship v SZNSP (2010) 184 FCR 485 (SZNSP) at [13], [33], [42]. He concluded that the Tribunal had sufficiently considered the corroborative evidence advanced by the appellant to satisfy the requirements of these cases. The primary judge found at [16] that the Tribunal had applied the same approach as the Tribunal did in SZNSP in reaching the conclusion (expressed at [28] of the Tribunal's reasons) to the effect that the documents that the appellant advanced were not accepted as genuine and/or containing truthful information. 22 As a consequence, the primary judge dismissed the application.

3.1 Introduction 23 The appellant was required to file his notice of appeal from the decision of the FCCA within 21 days of the decision. Accordingly, his current application is out of time and an extension is required pursuant to rule 36.05 of the Federal Court Rules 2011 (Cth). 24 The appellant relied on an affidavit that he had sworn dated 26 October 2016 in support of his application. In that affidavit he advanced the following matters as giving rise to the reasons why the Court should extend the time for him to bring the appeal; he was not represented by a lawyer before the Court below; when he received a copy of the FCCA's reasons he was not aware that an appeal to this court had to be filed within 21 days; following the dismissal of his application he made a request to the Minister asking that he intervene in his case; he did not believe that he could afford an appeal to this Court; only after his request for ministerial intervention was refused did he discover that there was no fee for his application to this Court; he could not afford legal representation before this Court; he was uncertain about the prospects of any appeal; he is impecunious and is concerned that he may not be able to pay any further costs orders. 25 The appellant's legal representative, Mr Arch, further submitted that two additional factors were significant in the current application. First and foremost, the appeal is meritorious. Secondly, as the Minister concedes, no prejudice is occasioned by the Minister as a result of the lateness of the appeal. 26 The Minister's representative, Mr Eskerie, submitted that the extension should be refused because, in short, the delay is significant, the fact that the appellant sought a ministerial intervention is a disqualifying feature for an extension and there are insufficient prospects for the success of the proposed appeal. 27 The parties agreed that the key considerations to the grant of leave are the length of the delay, the explanation for the delay, the presence or absence of prejudice to the respondent, and the merits of the proposed application; Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at [18] - [23]. 28 I turn first to consider the prospects of the proposed appeal.

3.2 The proposed appeal 29 In his written and oral submissions, the appellant did not materially differentiate between ground one and ground two of the proposed appeal. He characterised the "gist" of his appeal as being that the Tribunal fell into error by summarily refusing to consider the corroborative documentary evidence upon which the appellant sought to rely. He submitted that by doing so the Tribunal departed from established authority. The appellant relied in particular upon [28] of the Tribunal's decision record which is relevantly as follows: The Tribunal does not accept, therefore, that the applicant left Pakistan because he feared harm from persons who opposed his conversion. The Tribunal considers that the applicant left Pakistan for reasons entirely unrelated to those he has put forward in his Protection visa application. It follows that the Tribunal does not accept that the documents that the applicant has provided are genuine and/or that they contain truthful information. As discussed with the applicant during the hearing, fraudulent documentation is readily available and easy to obtain in Pakistan [a footnoted reference is here given to a report by the Department of Foreign Affairs and Trade which refers to the high prevalence of false documents in Pakistan]… 30 The appellant relied upon the Full Court's decision in SZNSP and WAIJ in support of its proposed appeal. In his written submissions the appellant contended that the jurisdictional error about which he complains is precisely what occurred in each of these cases. Specifically, the appellant submitted that the Tribunal, having heard the appellant's evidence, arrived at an initial conclusion that his account was not worthy of credit: the Tribunal determined that: "the applicant left Pakistan for reasons entirely unrelated to those he has put forward in his Protection visa application". However, after coming to this initial conclusion as to the appellant's credit, it did not take the necessary next step of assessing the credibility of the proffered corroborative evidence. The appellant further submitted that the Tribunal failed to engage in an "evaluative process" of considering the "nature, content and quality" of the corroborative evidence as required by SZNSP. 31 During the course of oral submissions, the appellant shifted ground slightly, and retreated from the proposition that the steps of assessment and evaluation are necessarily required by the authorities cited. 32 In response, the Minister contended that the authorities relied upon by the appellant in fact support the reasoning adopted by the Tribunal. In particular, the Minister contended that the Tribunal conducted a more in-depth analysis of the corroborating documents than that which was required by SZNSP and also by the High Court decision of Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 198 ALR 59 (Applicant S20/2002).

3.3 Consideration 33 The appellant now advances proposed ground one as the primary basis for his appeal. This ground is, in my view, encompassed within ground one of appeal advanced before the primary judge. Accordingly, no leave (beyond the extension of time) is necessary. The same position does not apply for grounds 2, 3 and 4, which raise new matters previously not considered by a primary judge. Leave to rely on those grounds is required; VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588 at [46] - [48]. I return to the question of grounds 2, 3 and 4 further below. 34 In SZNSP, the Full Court of the Federal Court of Australia (North and Lander JJ, Katzmann J concurring) considered the role of corroborating evidence. SZNSP had claimed to be a target of persecution in China because, contrary to the orders of the Communist Party, she had assisted two members of Falun Gong to escape from the authorities. She claimed that her superiors became aware of the assistance that she had given and thereafter she became a target for persecution. SZNSP supplied a witness statement, which purported to be from one of the members of the Falun Gong who she had assisted, in corroboration of her own claims. That statement asserted that the author was a Falun Gong practitioner and that SZNSP had indeed assisted her as she had claimed. 35 The Tribunal did not believe the claims made by SZNSP and concluded that, for a number of reasons, she had fabricated them. It then addressed the corroborating witness statement. The entirety of its analysis was as follows: In support of her claims, the applicant has provided a document purported to be, Witness Statement, from Lu Mei Ya (folios 29-32). Given the adverse credibility finding, the Tribunal does not give weight to the document. 36 After considering the decision of the High Court in Applicant S20/2002, the Court said: 34. It was not part of the first respondent's case that the RRT erred in its assessment of the weight of the corroborative evidence. Indeed no such submission could have succeeded. Without more, a failure to accord any weight to a piece of evidence does not give rise to jurisdictional error: Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21. 35. Moreover, it was open to the RRT to conclude that, in view of all the evidence in the case, no reliance should be placed on the witness statement. The corroborative evidence was not corroborative evidence at all. It did not tend to prove that the first respondent's evidence was true, nor does it act to strengthen that evidence. Corroborative evidence should be evidence independent of the person whose evidence is sought to be corroborated. It was evidence presented to the RRT by a person whom the RRT was of the opinion was fabricating her claims. The provenance of the witness statement was not established. It could easily have been created by the first respondent herself. It did not amount to corroborative evidence in the absence of proof of the provenance of the document and the reliability of the author, if in fact the author was Lu. If the first respondent was fabricating her claims, it would follow that she would fabricate the evidence upon which those claims are brought. That evidence would include the "corroborative" evidence of Lu. 36. When a decision maker has conducted a hearing of the kind which is conducted by the RRT and has heard the applicant, and has reached the tentative conclusion that the applicant's claims have been fabricated, the decision maker is entitled in our opinion to reject evidence which would, if accepted, have corroborated the applicant's account. That does not mean that any evidence of corroboration could be rejected. It would depend upon the nature, content and quality of the corroborative evidence before a decision maker could determine to reject it out of hand. In this case, as we have said, the document which is said to be the corroborative evidence is a document written in the Chinese language which has been interpreted, no doubt faithfully, into the English language and purports to be a statement of Lu. The applicant, whom the RRT believed was not a credible witness, proffered it as Lu's statement, but there was no other evidence other than the applicant's say so that it was. There is nothing irrational about the RRT in those circumstances rejecting the document by giving it no weight. In circumstances where the provenance of the document is unproved, but it is proffered by a witness whose credibility has been destroyed, the document has no more credit than the person proffering it. Consequently, the alternative argument relied upon by the appellants, outlined at [22] above, cannot be sustained. 37 It seems to me that the position in the present case gives rise to the same analysis and the same conclusion as set out above. The Tribunal rejected the credit of the appellant. It gave at least five reasons for doing so and in the present application the appellant does not challenge the adverse credit finding. At [27] of its reasons, the Tribunal said: … Having considered the totality of the evidence, the Tribunal is drawn to the conclusion that the applicant has manufactured his claims to have converted from the Sunni sect of Islam to the Shia sect of Islam. The Tribunal does not accept that either the applicant or his wife converted to the Shia sect of Islam. Nor does the Tribunal accept that the applicant had a false 'Blasphemy' case against him or was the subject of a First Information Report… 38 Although extensive corroborative evidence was brought forward by the appellant and presented to the Tribunal, the sole source of that evidence was the appellant whom the Tribunal considered to have fabricated his version of events. As in SZNSP (at [36]), there was no other evidence, other than the appellant's say so, as to its provenance. Just as in that case, there was "nothing irrational about the [Tribunal] in those circumstances rejecting the document[s] by giving [them] no weight". 39 The appellant relies heavily on a passage in SZNSP at [38] which states that the Tribunal would fall into jurisdictional error if, after making an adverse credit finding, it simply refused to consider the corroborative evidence. That evidence should still be assessed and weighed with all of the other evidence. In my view, that passage is not inconsistent with [36] of the same judgment. Regardless of the credit finding, as the Full Court said in SZNSP, the "nature, content and quality of the corroborative evidence" must be assessed. Once the evidence has been considered and its provenance has been established to lie with an appellant who has been found to have fabricated his or her story, it is not irrational - or a jurisdictional error - for the Tribunal to reject it. 40 In the present case, the Tribunal took a more nuanced approach than the Tribunal did in SZNSP. It not only read and summarised the corroborative evidence relied upon by the appellant (see [16] above), but also made specific findings regarding aspects of it in [25] - [27]. An example of some of those findings is set out in the quotation of [27] set out in [37] above. On this basis, the conclusion expressed by the Tribunal at [28], to the effect that it did not accept that the documents that the appellant had provided were genuine and/or that they contained truthful information, conformed with the requirements set out in SZNSP. Indeed, the Tribunal emphasised that it had discussed with the appellant during the hearing that fraudulent documentation is readily available and easy to obtain in Pakistan. The Tribunal there was, in effect, taking the matter further by pointing out that not only did it not believe the appellant's own version but that it considered that the untruthfulness of the appellant equally tainted the reliability of the purportedly corroborating material. That was a step further than the Tribunal did in SZNSP. 41 The appellant in the present case also relied on WAIJ and, in particular, the passage in that decision at [27] where Lee and Moore JJ said: Such a circumstance may arise where an applicant's claims have been discredited by comprehensive findings of dishonesty or untruthfulness. Necessarily, such findings are likely to negate allegedly corroborative material. (See: S20/2002 per McHugh, Gummow JJ at [49]). Obviously to come within that exception there will need to be cogent material to support a conclusion that the appellant has lied. Alternatively, if the purportedly corroborative material itself is found, on probative grounds, to be worthless it will be excluded from consideration by the Tribunal in assessing the credibility of an applicant's claims. However, it will not be open to the Tribunal to state that it is unnecessary for it to consider material corroborative of an applicant's claims merely because it considers it unlikely that the events described by an applicant occurred. In such a circumstance the Tribunal would be bound to have regard to the corroborative material before attempting to reach a conclusion on the applicant's credibility. Failure to do so would provide a determination not carried out according to law and the decision would be affected by jurisdictional error… 42 It is likely that the findings of the Tribunal bring it within the circumstance contemplated within the first three sentences of the above quote. The finding that, having regard to the totality of the evidence, the Tribunal concludes that the appellant has manufactured his claims is consistent with the finding that the appellant has lied. However, for the reasons that I have set out above, it is not the case that the Tribunal did not consider the allegedly corroborative material or failed to have regard to it. The Tribunal expressly considered the "totality of the evidence" in [27] and summarised the entirety of the allegedly corroborative material in [10] and [11], which have been set out above. Accordingly, in my view the position set out in WAIJ does not compel a different conclusion to that which I have expressed above. 43 During the course of submissions I drew the parties' attention to the decision of Robertson J in Plaintiff S244/2012. I conclude that his Honour's conclusion at [64] is entirely consistent with the analysis of the authorities that I have cited above. I am unable to accept the appellant's submission that it would be difficult to conceive of a starker difference between the present case and Plaintiff S244/2012 or that the Tribunal did not consider the content of the corroborating material at all. The Tribunal summarised the effect of the documents (at [10]), and indicated twice that had considered the entirety of the evidence (at [16] and [27]) when reaching its conclusions. Having rejected the credit of the appellant, in light of the authorities it was unnecessary for it to say further than it did at [28] (as quoted at [29] above). 44 Accordingly, I conclude that grounds 1 and 2 of the appeal do not have prospects of success. 45 Proposed grounds 3 and 4 of the appeal are expressed in different terms to grounds 1 and 2, but essentially rely on the same sub-stratum of facts. In short, they contend that the Tribunal's rejection of the corroborative material was illogical and legally unreasonable. For the reasons that I have explained above, in my view, close scrutiny of the reasons of the Tribunal does not reflect that conclusion. 46 The learned primary judge concluded his reasons in relation to ground 1 of the application then before him, in the following terms: In the case before me, the Tribunal applied the same approach as the Tribunal did in SZNSP. In addition, however, the Tribunal relied on country information to the effect that fraudulent documentation is readily available and easy to obtain in Pakistan. 47 I find that there was no error in the primary judge's reasoning or conclusion. 48 In my view there was an adequate explanation for the delay in bringing the current application for leave to appeal and no prejudice to the Minister occasioned by the delay. The appeal was arguable, but ultimately I have decided that it cannot succeed.

DISPOSITION 49 For the reasons advanced above the application for an extension of time within which to bring the appeal should be allowed, but the appeal should be dismissed with costs. I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Burley.

(Federal Court Rules 2011(Cth)

Migration Act 1958(Cth)ss 36, 424A

Federal Court Rules 2011(Cth)rr 36.03, 36.05

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