FEDERAL COURT OF AUSTRALIA

SZVCR v Minister for Immigration and Border Protection [2016] FCA 1283

Appeal from:

SZVCR v Minister for Immigration [2016] FCCA 895

File number:

NSD 669 of 2016

Judge:

RARES J

Date of judgment:

12 August 2016

Legislation:

Federal Court Rules 2011 r 9.63

Migration Act 1958 (Cth) ss 36, 425

Cases cited:

Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429

Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559

Date of hearing:

12 August 2016

Registry:

New South Wales

Division:

General Division

National Practice Area:

Administrative and Constitutional Law and Human Rights

Category:

No Catchwords

Number of paragraphs:

48

Counsel for the Appellants:

The first appellant appeared on behalf of the appellants

Solicitor for the First Respondent:

Mr A Markus of the Australian Government Solicitor

ORDERS

NSD 669 of 2016

BETWEEN:

SZVCR

First Appellant

SZVCS

Second Appellant

SZVCT

Third Appellant

SZVCU

Fourth Appellant

SZVCV

Fifth Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:

RARES J

DATE OF ORDER:

12 AUGUST 2016

THE COURT ORDERS THAT:

1.    The first appellant be appointed as litigation representative for each of his children, being the third, fourth and fifth appellants, for the purposes of the appeal hearing.

2.    The appeal be dismissed.

3.    The first and second appellants’ pay the first respondent’s costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT (REVISED FROM THE TRANSCRIPT)

RARES J:

1    This is an appeal from the decision of the Federal Circuit Court refusing the appellants’ application for constitutional writ relief against the decision of the Refugee Review Tribunal, given on 28 August 2014, that affirmed the decision of the Minister’s delegate not to grant the appellants’ protection visas: SZVCR v Minister for Immigration [2016] FCCA 895.

Background

2    The appellants are a husband and wife, and their three infant children. The husband was ill on 1 August 2016 when the appeal was originally listed for hearing, and I adjourned it to today. I ordered that the husband or wife file and serve an application on or before 10 August 2016 for an order under r 9.63 of the Federal Court Rules 2011 to act as the litigation representative for each of their three children who had been included in the application for a protection visa. That did not appear to be done. However, this morning, I made an order that the husband, who appeared today, be able to act for his three children as their litigation representative. He said that his wife was at home looking after their sick children, and that he was also still suffering from some form of sickness. I understood that the husband was making submissions on behalf of his wife, who had been included, with their children, in his application for a protection visa based solely on the claims that he had made for protection.

3    The husband is a citizen of Pakistan who first came to Australia in January 2008. Between that time and 13 January 2012, when the five appellants made their application for full protection visas, the husband had returned to Pakistan on three occasions. The delegate refused those applications on 15 November 2013.

4    During the course of the review by the Tribunal, the appellants were represented by a senior solicitor, who was also a migration agent, with the Refugee Advice and Casework Service. The appellants’ solicitor migration agent accepted before the Tribunal that the delegate had accurately summarised the appellants claims for protection, with one minor exception that was of no relevance for the purposes of the Tribunal’s review.

5    In essence, the husband claimed that in July 2004, he had travelled from his home in Karachi to Dubai where he worked in a hotel for four months. He claimed that the situation in Pakistan at that time was very dangerous and that he travelled to Iran from Dubai to avoid returning to Pakistan. He claimed that his father had been receiving violent threats and that he, the husband, was stressed. He claimed that his father held a political profile in Pakistan as the “protocol person” for a political party identified as the ANP. He claimed that his father had joined the ANP in 1999 and that, to live in Pakistan, it was necessary to be associated with some political party. He claimed that his father had done many things to assist the party, including the collection of funds when it held meetings, making arrangements for meetings, visiting peoples’ homes, checking voter lists at the time of elections, and motivating people to vote for the party. He claimed that his father had held meetings on a regular basis after coming home from work and that his father usually sat in the party office seven days a week. That office, he claimed, was located in a part of Karachi that the Tribunal suggested was within an area that was a stronghold of the Pakistan Peoples Party.

6    The husband claimed that he had helped ANP by doing whatever tasks his father had assigned to him, like writing on walls, preparing pamphlets, opening the party office, sitting with his father at that office, inviting his young friends to come and join the party and sit in the office. He claimed that he had been involved in elections at the union council level [sic] in 2003 and 2008 or 2009, although he had not been in Pakistan after February 2009.

7    In his application for a protection visa, or before the delegate, the husband claimed that he feared the MQM, which was another political party, and violent gangs. He claimed that he had come to Australia in 2008 because of the circumstances in Pakistan that were very bad, and that his father had advised him to leave the country.

8    He also claimed that his father had advised him to go to Dubai in April 2004. The husband claimed that he lived in an area of Karachi that was different, and about a kilometre and a half away, from the one in which the ANP office was located at which his father sat.

9    He claimed that his father and cousin had been assassinated by political opponents. The husband produced a first-information report that he said had been created by the Pakistan police relating to his father’s death.     The Tribunal noted that, in answer to question 12 on Part B of his protection visa application form, the husband said that he would produce death certificates in relation to his father and cousin, but never produced them. The Tribunal accepted that the father had died on 12 September 2011, but it did not accept that his father had been murdered.

10    He claimed that his family had been trying to sell their house in Karachi in 2011, but that his father had been killed a few days before the payment and that the house had only been sold after his father died. He told the Tribunal that he could produce evidence in relation to the sale of the house.

11    The husband also provided country information downloaded on the internet and provided by his solicitor migration agent to the Tribunal in the course of the review. The appellant provided a translation of the first-information report that recorded that it had been made by a cousin on 12 September 2011 who had said that his uncle, being the husband’s father, lived at a particular address. The report asserted that the husband’s father had a business as a dealer in cars and that he had gone out on the evening of 11 September 2011 and not returned. The report recorded that, at 7 am on 12 September 2011, the cousin had received a telephone call informing him that his uncle’s body was lying near a bus stop at a post office and that the caller had said:

Now it is your turn, as well as your brother [the husband] who is out of the country. We will not spare him too.

12    The cousin asserted in the report that he suspected that the workers of the MQM, whom he described in the report as “our rival party”, had murdered his uncle.

The proceedings in the Tribunal

13    The Tribunal invited the appellants to a hearing under s 425 of the Migration Act 1958 (Cth) at which the husband appeared with the assistance of the solicitor/migration agent and gave evidence and put submissions on his own behalf and on behalf of the other appellants.

14    The Tribunal recorded in its decision record its account of its questioning of the husband, including his claims that, in 2006, his father and cousin had been attacked and shot at while having a meal in Karachi and that this gave rise to fears on the husband’s part that he too might be killed by political opponents. The husband also claimed that the husband, his father and cousin had received threats from the MQM and been warned that, whenever there was a chance or opportunity, they would all be killed.

15    The Tribunal raised with the husband that, although he claimed to have received death threats, and his father and cousin experienced a life-threatening attack in 2006, nonetheless, the husband and cousin continued to live in Karachi without altering their lifestyle. The Tribunal also put to the husband that it had doubts that arose from the husband’s actions, which suggested that he did not believe that his life was in danger from the MQM throughout Pakistan, as he had alleged. The Tribunal put to the husband that he had returned from Dubai to work again in Pakistan, on at least two occasions including in 2007 when he was working at the front office of a hotel. The Tribunal put to the husband that that behaviour did not suggest that his life was being threatened, to which he responded that the threat had been there, but because he had been young he was not taking it seriously.

16    The Tribunal also raised with the husband what it saw as a difficulty in accepting his claims, based on his having left and returned to Pakistan three times from early 2008. The husband explained that, on the first two occasions, he had gone to Karachi but stayed in his mother-in-law’s house, and, on the third, he had returned for his father’s funeral in Lahore.

17    The Tribunal found that the husband’s delay in applying for a protection visa was relevant to the genuineness, or at least the depth, of his claimed fear of being persecuted if he returned to Pakistan again, as he had on three previous occasions. It did not accept that the husband had had problems with people from the MQM in the area in which he said he had been located in Karachi, or anywhere else in Pakistan. It noted that the Pakistan People’s Party, rather than MQM, was the dominant party in the area in which he claimed to fear harm from the MQM.

18    The husband also produced a translation of a sale agreement for the house owned by his mother. That had the same house address recorded as that given in the first-information report as the husband’s father’s home in Karachi. The Tribunal noted that the translation of the sale agreement suggested that the husband’s mother had not been living at that address, but at a different one, that the agreement was dated as having been made on 21 June 2011 and provided that the total consideration for the sale would be paid with a post-dated cheque on 27 October 2011, but that the mother would give possession of the property on 20 August 2011.    

19    The Tribunal found that the husbands evidence about the house transfer by his mother was inconsistent with his own evidence, and with the first-information report that he had produced. That was because that report had his father living at the address of the house at the time of his death, of which the agreement required his mother to have given possession to the purchaser three weeks earlier. The Tribunal considered that the husband’s evidence that his family had only given up possession of the house after his father had been killed, contrary to what the sale agreement appeared to state, cast doubt on whether the document was genuine.

20    The Tribunal also said that it found it difficult to accept that the caller who informed the husband’s cousin of his father’s death, had made the threat, that the husband claimed to have been made, directly against him.

21    Following the hearing in the Tribunal, the solicitor migration agent wrote to it on 30 May 2014. He made no complaint about the conduct of the hearing in the letter. The solicitor migration agent acknowledged that the husband had been given the opportunity to provide further submissions in support of the application for review. He noted that, during the course of the hearing, the Tribunal had expressed a view that country information did not support the proposition that members of the ANP were targeted by the MQM in the area in which the husband claimed they were, that there was a prevalence of document fraud in Pakistan, and the husband’s account included inconsistencies that might cast doubt over the genuineness of the police reports and certificates that the husband had provided to the Tribunal. The letter noted that the husband accepted that the PPP had control of the area in which he claimed to fear harm, but asserted that it did not follow that the MQM would not have the motivation or ability to target members of the ANP, and referred to country information in support of that argument. The solicitor migration agent submitted that the Tribunal should not simply dismiss the husband’s claims because “they may not be entirely corroborated by country information”, that his evidence was persuasive, and should carry significant weight.

22    In addressing the Tribunal’s doubts about the genuineness of the first-information report, the solicitor migration agent supplied further documents with a view to corroborating its genuineness. The solicitor migration agent had written, on 12 May 2014, to the Sindh Police Station in Karachi seeking confirmation of the genuineness of the first-information report, giving specific information about that report, and asking for a quick reply. The letter to the Tribunal noted, and included, copies of that correspondence together with the subsequent emails. These included an email of 22 May 2014 from a person with the email address, Sindhpolicekarachi@gmail.com. On 26 May 2014, the solicitor migration agent responded, asking the writer of the gmail.com email to respond using the email address at the domain “Sindhpolice.gov.pk” to which he had addressed his original inquiry. However, on 28 May 2014, a response came from the same gmail.com email address, asserting that the first-information report on which the husband had relied was genuine.

23    The solicitor migration agent invited the Tribunal to contact the relevant police station in Pakistan on a telephone number that he supplied, but his letter did not suggest that at any time the solicitor migration agent had made any such contact.

The Tribunal’s decision

24    The Tribunal found that the solicitor migration agent:

obviously had some disquiet about the response they received to their first email message because they asked that a response come from the official email address of the Sindh police, but the second email message which they have produced did not come from that address.

25    The Tribunal noted the invitation that the solicitor migration agent had given for it to contact the police itself, saying that it was well-established that it was not for the Tribunal to make out an applicant’s case for him. It said that the submission from the solicitor migration agent had not suggested that the solicitor migration agent had contacted the police station.

26    In light of all of the evidence, including country information from the Department of Foreign Affairs and Trade that it was not difficult to produce documents fraudulently and document fraud was extremely common in Pakistan, particularly in relation to the production of fraudulent first-information reports, the Tribunal gave greater weight to the problems that it found with accepting the husband’s evidence than it did to the first-information report or the sale agreement that the husband had produced. It did not accept that the husband’s father or cousin had been killed by the MQM because of their involvement in the ANP, or that the husband had himself been threatened by the MQM because of his own or his father’s involvement in the ANP. The Tribunal found that there was no real chance that, if the husband returned to Karachi now or in the reasonably foreseeable future, he would be threatened, killed, or otherwise persecuted by those from whom he claimed to fear harm for reasons of his real or imputed political opinion in support of the ANP, his membership of a particular social group constituted by his family (based on his relationship with his father or cousin) or for any other Convention reason. Accordingly, it rejected his claim to protection under s 36(2)(a) of the Act.

27    In light of its findings on that aspect of his application, the Tribunal also did not accept that, on the evidence, there were substantial grounds for believing that, as a necessary and foreseeable consequence of the husband being removed from Australia to Pakistan, there was a real risk that he would suffer significant harm from the persons whom he claimed to fear as a result of his own or his father’s claimed involvement in the ANP. The Tribunal accepted that extortion by gangs was a problem in the area in which the husband and his family had been in Karachi, as well as in other parts of Karachi, but it found that the husband had worked as a clerk for a company and in the front office of a hotel, notwithstanding that his evidence suggested that extortionists primarily targeted businesses.

28    It did not accept that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the husband being removed from Australia to Pakistan, that there was a real risk that he would be subjected to extortion by criminal gangs. And, while it accepted that there was a level of violence in Karachi, it did not accept that there were particular factors that increased the risk of the husband being harmed in the context of that violence, or that there was a real risk that he would suffer significant harm in the context of that violence in Karachi. It also found that none of the other bases were made out on which the husband claimed would engage Australia’s complementary protection obligations under s 36(2)(aa). Accordingly, the Tribunal affirmed the delegate’s decision.

The proceedings before the primary judge

29    The appellants application before the trial judge raised three unparticularised grounds of review; namely that the Tribunal had committed a jurisdictional error, first, in failing to comply with the Migration Act, secondly, in handing down its decision and, thirdly, in depriving the appellants of natural justice.

30    The husband sought to lead fresh evidence before the trial judge of a death certificate relating to his father.

31    His Honour rejected that evidence as not being admissible on a judicial review application. That decision was correct. The Tribunal’s obligation was to determine the application for review on the material before it. The evidence which the husband sought to tender before the trial judge was not before the Tribunal and its reception into evidence before his Honour could not have demonstrated that the Tribunal had made a jurisdictional error in relation to its subject matter because that subject matter had not been before the Tribunal.

32    His Honour rejected each of the grounds of the application below, because they were broad and general, lacked any particularity and, in the context, were meaningless. I can see no error in his Honour’s approach.

33    His Honour also gave careful consideration to a second affidavit that the husband filed which his Honour treated as a submission. In substance, that affidavit challenged the factual findings by the Tribunal. His Honour noted that the husband’s first complaint, that he had not been believed by the Tribunal, was correct. He found, and I agree, that the evidence revealed that the Tribunal had put the husband on notice of its concerns at the hearing and it gave cogent reasons for its failure to be satisfied by that evidence. The trial judge found, and I agree, that there was no legal error in the Tribunal exercising its role of making findings as to whether it had been satisfied by that evidence. His Honour found that the husband had not put before the Court any transcript of the hearing in the Tribunal and that the only evidence of this was the Tribunal’s own decision record, which did not disclose any suggestion that the Tribunal had acted other than according to law.

34    His Honour rejected the complaints that the Tribunal had not found that the MQM would have posed a threat, as the husband contended, on the basis that it was the Tribunal’s role to find the facts and there was no jurisdictional error apparent in the way in which it had undertaken that task.

35    He found that it was clear that the Tribunal did consider the husband’s evidence of its claims, but simply did not accept them. His Honour rejected the husband’s invitation to review the Tribunal’s findings of fact as an impermissible attempt to engage in merits review. I agree.

36    His Honour examined the Tribunal’s consideration of the material relating to the genuineness of the first-information report, including the solicitor migration agent’s invitation to the Tribunal to contact the police directly on a telephone number. His Honour found, correctly, that the Tribunal had no obligation to make an inquiry as the solicitor migration agent had invited it to do, relying on the decision in Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 at [25].

37    His Honour noted that one of the husband’s and wife’s four children was not an applicant before the Tribunal, but the others were and that no separate claims had been made by them or the wife. His Honour rejected a claim in the submissions contained in the new affidavit that the Tribunal member had not been acting in good faith. He said that if that were an allegation of bias on the part of the Tribunal, there was no basis for that mere assertion on the evidence before the Court. I agree.

38    His Honour rejected the argument that some jurisdictional error had been made by the Tribunal in handing down its decision. There was no material to suggest that it had made any such error, and his Honour was entirely correct to reject that application. His Honour also rejected the argument that the Tribunal had deprived the husband of natural justice, that, again, being an unparticularised assertion. His Honour found it amounted to no more than a disagreement with the outcome of the review, and that there was no basis to find that a jurisdictional error had occurred by reason of any denial of natural justice. I agree.

39    Indeed, as I have noted, the husband was represented by a solicitor migration agent at the Tribunal hearing and, during the course of the proceedings in the Tribunal, he made no complaint of any kind as to procedural fairness.

The husband’s submissions on the appeal

40    Before me today the husband argued that no one had been listening to him, and that they all had prejudged his case in advance, and that is why he was left without a finding in his favour. He claimed that he had given evidence to the Tribunal, but that it had not properly investigated his claims, and that it should not have found him to be a witness whose evidence it did not accept. He said that the Tribunal had really made up its mind, and would not listen to him, or investigate his complaints.

41    He claimed that the Tribunal had not properly considered documents he had put before it or the further submissions that his solicitor migration agent had put to it after it had invited him to do so. He claimed that the Tribunal should have telephoned the police station, as the solicitor migration agent had invited it to do, and that all the police had Gmail or Yahoo email addresses. The husband said that he had been given an opportunity by his Honour to present his own evidence, and that his Honour had acted very fairly, but that he committed an error by failing to discover one made by the Tribunal. He said that he had four children, and no funds for a lawyer, and that he had genuine claims that entitled him to have his matter remitted to the Tribunal to be reheard.

42    The notice of appeal asserted the following three grounds:

1.    That the Ground of Well Founded Fear has not been correctly applied in this case.

2.    Not being able to provide further evidence which supported the case in proving well founded fear because of what had happened to the father and cousin. If this evidence is provided then it gives greater ground to prove the Ground of Well Founded Fear has not be correctly applied. Evidence as stated the death certificates and post mortem were not accepted.

3.     Ground of compassion for the children, 1 out of 4 children were born in Australia. The child born in Pakistan came to Australia at a very young age. Due to the children being born and raised in Australia, there is a well founded fear that they will also face persecution in Pakistan and a higher risk of kidnapping. Country information will show that this has happened before in Pakistan.

Consideration

43    The first ground is meaningless. The Tribunal made specific findings about whether the husband had satisfied it that he had a well-founded fear of persecution. As Brennan CJ, Dawson, Toohey, Gaudron, McHugh, and Gummow JJ said in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 572:

no fear can be well founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation.

44    The Tribunal referred specifically to that test in the attachment to its reasons setting out the relevant law. There is no basis for concluding that the Tribunal made any error in its consideration of the appellants’ claims to a protection visa on Convention grounds.

45    The second ground appeared to rely on the evidence concerning his father’s death certificate, that his Honour rejected in the Court below, that had not been before the Tribunal. In my opinion, for the reasons I have given, there is no substance in this ground. The material was not before the Tribunal. Accordingly, no jurisdictional error could have been made by the Tribunal in not considering it, and the fact that, however, unfortunately, the husband has only subsequently been in a position to put such material before the Tribunal does not establish that the Tribunal, when earlier exercising its jurisdiction, committed a jurisdictional error.

46    The third ground in the notice of appeal is an understandable cry by laypeople for compassion, but provides no legal foundation for this Court or the Federal Circuit Court to determine that the Tribunal made a jurisdictional error. It is for administrative decision-makers exercising their powers under ss 36(2)(a) and (aa) of the Migration Act to make decisions as to whether they are satisfied that Australia has protection obligations to applicants seeking that protection.

47    In this case, the appellants failed to establish such a basis to the satisfaction of the Tribunal. No jurisdictional error in its decision has been demonstrated or, having reviewed the whole of the appeal papers, can I perceive any apparently arguable basis to discern one. I am satisfied that there is no error in his Honour’s decision to dismiss the application below with costs.

48    I order that the appeal be dismissed with costs.

I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares.

Associate:

Dated:    1 November 2016