FEDERAL COURT OF AUSTRALIA

SZLVZ v Minister for Immigration and Citizenship [2008] FCA 1816

SZLVZ v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 1442 of 2008

MIDDLETON J

18 NOVEMBER 2008

SYDNEY

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The appellant pay the costs of the first respondent.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

REASONS FOR JUDGMENT

INTRODUCTION

1                     This is an appeal against a judgment of Federal Magistrate Lloyd-Jones of 29 August 2008 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’) of 13 December 2007.  The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Citizenship to refuse to grant a protection visa to the appellant.

BACKGROUND

2                     The appellant is a citizen of Pakistan who arrived in Australia on 6 December 2006.  On 21 December 2006 the appellant lodged an application for a protection visa with the Department of Immigration and Citizenship.  A delegate of the first respondent refused the application for a protection visa on 8 March 2007.  On 23 March 2007 the appellant applied to the Tribunal for a review of that decision.

3                     The appellant claimed to fear persecution in Pakistan from the Jamaat-e-Islami (‘JI’) and Muttahida Majlis-e-Amal (‘MMA’) and other religious fundamentalists because of his memberships with the International Human Rights Commission (‘IHRC’) and the Pakistan Muslim League, NAWAZ Sharif Group (‘PMLN’).  He claimed that the police visited him every three months since he joined the PMLN and he was arrested on several occasions for his involvement in rallies against the government.  He claimed that he organised a rally in support of a legislative bill amending Pakistan’s rape laws.  During that rally he was kidnapped and bashed for three days by fundamentalist JI and MMA members.  The appellant claimed that while he was in Australia, his home in Pakistan was attacked and his family threatened.  He also claimed that he was dismissed from his employment because of his political activities, and was depressed and suffered memory and concentration problems as a result of his torture.

4                     The appellant also claimed to fear persecution based on his membership of the particular social group of his family, given his relationship to his brother, and due to his brother’s lengthier and more involved political involvement with the PMLN and the IHRC.

5                     Since the declaration of a state of emergency in Pakistan, and in the current climate for supporters of Nawaz Sharif, the appellant and his brother claim to fear being arrested and detained by the police in relation to their political activities.

BEFORE THE TRIBUNAL

6                     The appellant and his brother attended a Tribunal hearing and gave evidence on 6 June 2007.  The appellant’s adviser also made several written submissions and submitted various supporting documents and country information on his behalf.

7                     On 18 July 2007 the Tribunal wrote to the appellant pursuant to s 424A of the Act inviting him to comment on information and inviting him to inform the Tribunal if he wished to have a further hearing to give additional oral evidence.  On 30 July 2007 his adviser responded to the invitation to comment, and did not indicate that he wished to have a further hearing.  On 19 October 2007 the Tribunal wrote a second letter inviting the appellant to comment on information.  His adviser responded on 25 October 2007.

8                     The Tribunal concluded that the appellant and his brother were never members of, or involved in, the IHRC as claimed, for the following reasons:

·                    The purported membership cards produced to the Tribunal contained anomalies.

·                    The inaccurate evidence of the appellant and his brother as to the nature of the organisations international presence was inconsistent with their claimed involvement, and the information in the newspaper reports they submitted in relation to their alleged kidnapping was at odds with their evidence.  Given these difficulties and independent country information indicating that it was possible to pay or use private contractors to have newspaper articles published depicting a situation of persecution, the Tribunal did not accept that the reports provided a reliable reflection of true events.

·                    The Tribunal did not accept that the newspaper report referring to an attack on the family home provided an accurate and reliable account of true events, given that the appellant and his brother did not refer to the attack in their protection visa applications, and given the difficulties with the other reports.

·                    The Tribunal accepted and exercised caution in relation to cultural differences, but had difficulty accepting the evidence about the way the IHRC dealt with women’s rights issues.  Given its other concerns with the appellant’s claims, the Tribunal considered that the information from the Department of Foreign Affairs and Trade, indicating that the IHRC had a limited role in women’s rights issues and that there was little evidence of assistance of rape and domestic violence victims at a local level, was relevant.

·                    Taking into account the fact that fraudulent documents were readily available in Pakistan, the Tribunal had regard to the IHRC letters, the business cards, the documents from Lahore General Hospital and the letter of termination from the appellant’s employer, but did not consider that they were sufficient to outweigh the other factors causing the Tribunal to conclude that the appellant and his brother were not involved in the IHRC.

9                     It followed that the Tribunal did not accept that the appellant or his brother were involved in a rally, were detained, tortured or harmed as a result, that they had ever come to the adverse attention of any party due to any involvement in the IHRC or its activities or that their home or family were targeted following their departure from Pakistan as a result.

10                  Further, the Tribunal did not accept that the appellant or his brother were members of the PMLN for the following reasons:

·                    The Tribunal did not accept that the appellant displayed a knowledge of the PMLN consistent with his claimed role as joint secretary and his claimed involvement in some of the activities such as organising meetings and rallies.  The Tribunal did not accept that he was able to be involved in the PMLN without a membership card and found his failure to attend any meetings to be inconsistent with his claimed interest in the party and having become an officer bearer.

·                    The Tribunal did not accept that the appellant ever held, or was ever imputed with, a pro-PMLN political opinion as a result of the political involvement of his brother.

·                    The Tribunal did not accept that the ‘Notification’ submitted as evidence of the appellant’s membership was a reliable indicator of involvement in the PMLN as a result of its difficulties with the appellant’s other evidence as to his involvement.

11                  It followed that the Tribunal did not accept that the appellant or his brother had come to the adverse attention of the government, authorities or any political or religious group as result of involvement in the PMLN.

12                  The Tribunal accepted the evidence in the psychiatrist’s report that the appellant may have been suffering from memory and concentration problems and may have suffered trauma and had concern for his family.  However, the Tribunal did not accept that he suffered harm as a result of involvement in the IHRC or PMLN or that his family was at any risk because of such involvement by the appellant or his brother.  While the Tribunal accepted that the appellant and his brother might have had scars, it did not accept that they were the result of the described events.

13                  The Tribunal accepted the evidence that the political environment in Pakistan had recently become more oppressive, but it did not accept that the police had come in search of the appellant or his brother following the imposition of martial law in Pakistan.  Further, the Tribunal did not accept that the appellant had a profile which would lead him to be sought in that way, or that he had any interest in political or women’s rights activities.

14                  The Tribunal did not accept that the newspaper reports on their own, in the absence of any actual activity, would be sufficient to cause the appellant or his brother to face persecution from fundamentalists or others because of an imputed political opinion or perceived membership of a social group.  The Tribunal found that the chance of persecution for actual or imputed political opinion, religion, membership of a social group constituted by his family or political, human rights or women’s rights activists was remote, even accepting the recent deterioration in the political environment in Pakistan.

THE FEDERAL MAGISTRATES COURT

15                  Before the Federal Magistrate, the appellant filed an amended application which contained ten grounds of review, some of which were particularised.  These grounds were identical to those pleaded by the appellant’s older brother in SZLVW v Minister for Immigration and Multicultural and Indigenous Affairs [2008] FMCA 1199.  Essentially, the appellant contended that:

·                    The Tribunal failed to have regard to the whole of the evidence before deciding whether it believed the appellant, and it did not properly assess the significance of the documentary evidence which corroborated the appellant’s account.

·                    The decision of the Tribunal was illogical, irrational, or lacking a basis in findings or inferences of fact supported on logical grounds.

·                    The Tribunal fell into jurisdictional error in so far as it made findings that were not open on the evidence before the Tribunal.

·                    The Tribunal misconstrued the requirement of s 91R(1)(a) of the Act.

·                    The Tribunal failed to ask a question that it was, in the circumstances of this case, legally required to ask.

·                    The decision of the Tribunal was affected by jurisdictional error in that the Tribunal did not take into account certain relevant consideration or ‘integers’ central to the appellant claims; namely that the appellant was questioned for a number of hours, causing him to feel stressed and intimidated.

·                    The Tribunal thereby failed to carry out its review function and to exercise its jurisdiction.

·                    The Tribunal applied the wrong test.

·                    The Tribunal, in making its determination, failed to record its decision in accordance with s 430 of the Act.

·                    The Tribunal failed to determine the chances of the appellant being persecuted should he return to Pakistan.

16                  The hearings for the two matters were held simultaneously, with both brothers appearing and giving evidence, although separate judgments were delivered.  His Honour did, however, refer to, and rely upon, the reasoning he gave in SZLVW v Minister for Immigration and Citizenship [2008] FMCA 1199 in regards to SZLVZ.  In SZLVW his Honour found that:

·                    The Tribunal considered the evidence before it, and was not required to determine the authenticity of certain documents.

·                    No illogical, irrational or unreasonable thinking was revealed in the decision record.

·                    The Tribunal provided a detailed analysis of the evidence put before it and dealt with each of these issues in coming to its findings.  It was clearly stated what elements of that evidence it did not accept which led it to ultimately not accept the appellant’s claims.

·                    Ground four was misconstrued, and did not disclose an arguable error.

·                    The Tribunal was not required to consider the issue of state protection.

·                    The Tribunal specifically addressed the integers central to the appellant’s claims.

·                    On a fair reading of the decision all the issues raised by the appellant were addressed both singularly and collectively.

·                    The Tribunal decision complied with each of the four requirements of s 430(1) of the Act.

·                    The contention that the Tribunal failed to determine the chances of persecution should the appellant return to Pakistan was not supported by the Tribunal finding that the likelihood of this was remote.

17                  His Honour therefore similarly concluded in each application that none of the grounds disclosed jurisdictional error.

THE PRESENT APPEAL

18                  By notice of appeal filed on 15 September 2008 the appellant appeals from the whole judgment of the court below.  The appellant filed written submissions on 6 November 2008.

19                  The appellant submitted today that the Tribunal did not consider properly the documentary evidence, including the newspaper articles and identity card put before the Tribunal.  The appellant contended that the Tribunal failed to verify for itself the authenticity of the documentary evidence.  The appellant contended that the Tribunal was ‘very strict’ in its approach, and did not accept his evidence.

20                  In relation to these matters, to the extent not covered by the written submissions, I can say at the outset that, in my view, the Tribunal did properly and fully consider the documentary evidence in various passages in its reasoning, and made conclusions based upon its acceptance, or otherwise, of that documentary evidence.  The issues raised by the appellant today have all been considered and rejected by the Tribunal, and it is not this Court’s function to deal with the merits of the case.

21                  Dealing then with the notice of appeal, it contains the following ground:

The Court below erred in that it ought to have held that on the evidence before the Tribunal it was open to the Tribunal to find that the appellant was a refugee within the meaning of the Act.  In such circumstances the Tribunal erred in that:

Particular:

(i)         It failed to properly apply the consideration that applicant [sic] for refugee status ought to be given the benefit of the doubt in circumstances where the Tribunal entertained the possibility that the applicant [sic] claims are plausible, which was the case here.

22                  The appellant’s written submissions raise several more grounds.  They do not allege any error on the part of the Federal Magistrate, but instead attack the Tribunal decision.  These grounds are summarised below:

·                    The Tribunal failed to record its decision in accordance with s 430 of the Act, in that:

-            the Tribunal made no finding as to the extent or nature of persecution suffered by the appellant;

-            the Tribunal found that there was no plausible evidence before it that the appellant suffered persecution, and the Tribunal failed to give real reasons for that finding; and

-            the Tribunal failed to record the material facts for the reasons referred to above.

·                    The Tribunal denied the appellant procedural fairness by reaching the adverse conclusion that he was not a credible witness, being a conclusion that was not obliviously open on the known material, without giving him the opportunity to be heard in respect of that matter.

·                    The Tribunal failed to consider the appellant’s genuine claims.  The appellant gave adequate evidence to the Tribunal that he was attacked on several occasions and that his family members were also attacked, harassed and threatened because of the appellant’s position as a joint secretary of the PMLN party and his association with the IHRC.

·                    The Tribunal failed to investigate the appellant’s claims, especially the grounds of persecution in ‘India’ [sic].  Therefore the Tribunal’s decision was affected by actual bias.

·                    The Tribunal failed to analyse properly the ‘future harm’ the appellant may face if he returns to Pakistan.  Due to this failure, the Tribunal had committed jurisdictional error by failing to assess or carry out the ‘real chance test’.

23                  I make the following general observation on the reasoning and conclusions of the Tribunal, and the failure to give the appellant the benefit of the doubt in assessing his claims.  I have already described above the conclusions of the Tribunal, based upon findings of fact and credibility.

24                  Generally, there is no onus of proof in administrative inquiries and decision making: Yao-Jing v Minister for Immigration and Multicultural Affairs (1997) 74 FCR 275 at 288.  However, it is for an applicant to provide evidence and arguments in sufficient detail to enable the decision maker to establish the relevant facts: Minister for Immigration and Multicultural and Indigenous Affairs v Lat (2006) 151 FCR 214.  The decision maker is not required to make the applicant’s case for him or her: Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155, 170.

25                  It is also the case that in assessing credibility, the Tribunal must be sensitive to the difficulties often faced by applicants and should give the benefit of the doubt to those who are generally credible, but are unable to substantiate all of their claims: see Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437.  However, the Tribunal is not required to uncritically accept any or all of the allegations made by an applicant. 

26                  The case before me is not a situation where the appellant was considered to be generally credible but was unable to substantiate all of his claims as discussed by Beaumont J in Randhawa 52 FCR 437.  Rather, the Tribunal carefully assessed each of the appellant’s claims and made findings based on the material before it, giving detailed reasons for either accepting or rejecting those claims.  The Tribunal was entitled to make findings adverse to the appellant and was not required to accept everything alleged by the appellant.

27                  Therefore, there is no substance to the appellant’s claim that the court below erred by failing to find that the Tribunal failed to give him the benefit of the doubt in circumstances where the Tribunal entertained the possibility that his claims were plausible.  No error of law can be detected on behalf of the Federal Magistrate or the Tribunal.  The Tribunal identified with particularity all of his claims and supporting material before it; explored the appellant’s claims with him at a hearing; raised with the appellant the inconsistencies in his evidence and doubts over his claims (both at hearing, and in the s 424A letters); made findings based on the evidence and material before it; and, applied the correct law to its findings in reaching its conclusion that it was not satisfied that he was a person to whom Australia has protection obligations under the Convention.

28                  As I have already indicated, it is not this Court’s function to substitute its own view of the evidence for that of the Tribunal.  Even if it were open to the Tribunal to have come to a different conclusion on the basis of the evidence before it, that would not constitute a jurisdictional error.

29                  The Tribunal was not required to accept the appellant’s claims for refugee status without being satisfied that all the statutory elements had been made out: Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 596.

30                  In relation to the alleged breach of s 430, the essence of the complaint seems to be that the Tribunal did not give sufficient or proper reasons for finding that there was no plausible evidence that he had suffered persecution in Pakistan.  This ground cannot be sustained.  The Tribunal’s decision clearly set out, in great detail, the reasons why the Tribunal did not accept that the appellant had suffered persecution in Pakistan as claimed.

31                  As concluded by the Federal Magistrate, in compliance with s 430 of the Act, the Tribunal’s decision set out the reasons the Tribunal considered that the appellant was not entitled to a protection visa and the reason the Tribunal was unable to accept specific parts of the appellant’s claim based on inconsistencies in his evidence and implausibility of his claims.

32                  I now turn to consider the other complaints. 

33                  As to there being a breach of procedural fairness, or breach of s 425, this was not raised before the Federal Magistrate, but in any event cannot be sustained.  The appellant was already aware that the credibility of his claims was in issue as the delegate did not accept the appellant’s claims.

34                  The Tribunal directly put to the appellant that it had doubts about his claims and the evidence provided by the appellant and his brother.  In addition, at the end of the Tribunal’s s 424A letter of 18 July 2007, in which the Tribunal explained its doubts in great detail, the Tribunal gave the appellant the opportunity to be invited to a second hearing, of which, the appellant did not avail himself.

35                  As to the allegation that the Tribunal failed to consider the appellant’s genuine claims, the Tribunal was entitled to find that it was not satisfied that the appellant had made out his claims, on the basis of the evidence before it.  In my view, it considered all the claims of the appellant in accordance with the correct principles to be applied.

36                  As to the allegation that the Tribunal failed to investigate claims and actual bias, putting aside the reference to ‘India’ in the appellant’s material, there is simply no basis to support this allegation, either on the record or otherwise.  I reject this ground as having no foundation on the evidence before me.

37                  Finally, as to the allegation that the Tribunal failed to carry out the ‘real chance test’, this ground was raised as part of ground 10 in the amended application to the court below.  I agree with the reasons and conclusion of the Federal Magistrate that this ground cannot be sustained.  The Tribunal found that the chances of persecution should the appellant return to Pakistan were remote and clearly articulated its reasons for this conclusion.

CONCLUSION

38                  In my opinion, the approach of the Federal Magistrate and his Honour's conclusion were correct.

39                  The appeal should be dismissed.

Associate:

Dated:         1 December 2008