FEDERAL COURT OF AUSTRALIA

SZOBC v Minister for Immigration and Citizenship [2010] FCA 712

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The appellant pay the first respondent’s costs.

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 Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

1                                             This is an appeal from the decision of Emmett FM in SZOBC v Minister for Immigration & Anor [2010] FMCA 131 dismissing the appellant’s application for review of the decision of the second respondent (the Tribunal). On 5 November 2009, the Tribunal affirmed the decision of a delegate of the first respondent (the Minister) to refuse to grant the appellant a Protection (Class XA) visa.

background

2                                             The appellant is a citizen of Pakistan and was born in Rawalpindi. He says that he had lived in Rawalpindi all of his life, save for approximately four months of each year when he lived with relatives in Kuzabundy in the Swat Valley. After leaving school the appellant trained as a professional squash player and first travelled to Australia for squash training on 22 November 2006 before returning to Pakistan on 20 February 2007.

3                                             On 4 July 2007 the appellant travelled to Australia again but on this occasion, he did not return to Pakistan. On 2 July 2009 he was placed in immigration detention. On 3 July 2009 he lodged an application for a protection visa, some 2 years after his arrival in Australia for the second time.

4                                             In his visa application, the appellant claimed that he left Pakistan because he feared he was in danger from members of the Taliban. This was said to be due to two incidents that occurred on his return to Pakistan from Australia in early 2007. The first such incident occurred at the end of May 2007, when he was approached at the local Mosque in Kuzabundy by three men, who he came to realise were members of the Taliban. He claims that the men told him that they knew he was a good Muslim as they had seen him come to the Mosque many times and they wanted him to join them and take up guns.

5                                             The second incident is said to have occurred approximately one month later, when the appellant was attending a Mosque in Islamabad. The appellant claims that he was approached by the same three Taliban men who asked him why he had not joined them yet and said that if he did not join them, bad things would happen to him and they could track him down anywhere in Pakistan. He says that he was very frightened as they were the same men who approached him in Kuzabundy and the Taliban had people throughout Pakistan that wanted to force young people to join them. He departed for Australia just a few days later, on 2 or 3 July 2007.

6                                             The appellant claims to have originally intended to only stay in Australia for the duration of his visa, which was three months. However, one or two weeks after arriving he says that he became aware that Taliban activity was increasing in Pakistan and he did not think it safe to return. He says that he then lost his passport and identification and was informed by various (unidentified) people that without this documentation, he could not apply for a visa and would be deported to Pakistan. After this, out of fear, he did not go out but stayed inside and watched television. He says that during this period the situation in Pakistan deteriorated further with increased Taliban attacks on his family’s village in the Swat Valley, culminating with the death of his uncle in 2009 after his uncle’s house in Kuzabundy was hit by a Taliban rocket.

7                                             As a result of these occurrences, the appellant claims that if he were to return to Pakistan, the Taliban would target him because he is a “good muslim” and that if he does not join them, the Taliban will harm him and destroy his life. The appellant further claims that the authorities in Pakistan would not be able to protect him because he was just an ordinary person.

the decision of the delegate

8                                             A delegate of the Minister refused to grant the appellant a protection visa on 10 August 2009. In refusing the appellant’s visa application, the delegate accepted the appellant’s claim that the Taliban put pressure on young men to join their movement. The delegate also accepted that the appellant was approached on two occasions by members of the Taliban, but noted that on the appellant’s own admission, these meetings were coincidental and as such, they did not indicate that the Taliban were either targeting or following the appellant. The delegate found that this, together with the appellant’s two year delay in applying for an application visa, his implausible explanation for the delay and his voluntary return to Pakistan in 2007, all seriously undermined his claimed fear of Convention-related persecution. In addition, the delegate considered that the authorities in Pakistan could provide the appellant with adequate protection. In light of these findings, the delegate concluded that the appellant did not face a real chance of persecution for a Convention-related reason if he returned to Pakistan, and that any fear that the appellant had was not well-founded.

the decision of the tribunal

9                                             The appellant attended a hearing before the Tribunal on 21 October 2009 with the assistance of a Pashto interpreter and his migration agent. On 5 November 2009, the Tribunal affirmed the decision of the delegate. The Tribunal’s decision was accurately summarised by the federal magistrate at [29] of her Honour’s reasons:

The Tribunal found that the Applicant’s claims were unsupported by any corroborative material, aside from press clippings, notwithstanding that he had been in Australia for 27 months. It found that his claims to have received threats from the Taliban were extremely general and vague. It did not accept that the alleged threat made in an Islamabad Mosque occurred because the Applicant contradicted it at the hearing by claiming that it occurred on his way to playing squash. The Tribunal found that if the incident had occurred it would have been explained clearly in both his protection visa application and at the hearing. Further, if he held fears by reason of those events he would have taken immediate action to file an application for a protection visa upon arrival in Australia. The Tribunal was not satisfied that the Applicant had a sporting profile that would result in him being targeted by the Taliban or other Islamic fundamentalists wherever he went in Pakistan. It was not satisfied that a young male in Pakistan was at risk of persecution by the Taliban or that there was a total breakdown in effective state protection. Rather the Pakistani government was willing to ensure that effective state protection can be provided.

10                                          A key factor in the Tribunal’s decision was its finding that the appellant was not a credible witness. This finding was based on the vague and general nature of the appellant’s claims, the lack of corroborative evidence and the inconsistent evidence given by the appellant in relation to what the Tribunal described as the appellant’s “central claim”, being his second encounter with the Taliban. Further, the Tribunal was not satisfied that the applicant had any sort of sporting profile in Pakistan that would result in him being specifically targeted by the Taliban or other fundamentalists.

the decision of the federal magistrate

11                                          By an amended application the appellant sought judicial review of the Tribunal’s decision in the Federal Magistrates Court. Ultimately the only ground of review pressed before the federal magistrate was that the appellant was denied procedural fairness before the Tribunal. This was said to arise as the Tribunal made determinations against the appellant in relation to matters that were accepted by the delegate, without disclosing to the appellant that these matters were in issue before the Tribunal. The two matters identified by the appellant were the rejection by the Tribunal of the appellant’s second encounter with the Taliban members in Islamabad and the Tribunal’s rejection of the claim that the Taliban pressured young men to join them. The appellant argued that the failure by the Tribunal to disclose that these matters were in issue constituted a breach of s 425 of the Migration Act 1958 (Cth) (the Act).

12                                          The application was dismissed by Emmett FM on 26 February 2010. In relation to the appellant’s second encounter with the Taliban, her Honour rejected the submission that before making a finding different to that of the delegate the Tribunal was obliged under s 425 of the Act to put the inconsistency in the appellant’s evidence, and the issue relating to his credibility, to the appellant. After considering the appellant’s claims, the findings of the delegate, the exchanges between the Tribunal and the appellant at the Tribunal hearing and the relevant findings of the Tribunal, her Honour concluded (at [51]-[53]):

51.               …In my view, a fair reading of the transcript makes clear that the Tribunal member understood and accurately reflected the Applicant’s evidence in its decision record. The context of the discussion of the second encounter was plainly in light of the Tribunal putting to the Applicant its concerns about how and why he may be tracked by the Taliban in Pakistan.

52.               The Applicant’s evidence in respect of the second encounter was clearly inconsistent with his bare claim before the Delegate that he had a second encounter with the Taliban in a Mosque in Islamabad, during which various threats were made to him. In the circumstances, it was open to the Tribunal member to find that the Applicant’s evidence before it was inconsistent with that claim. It was not obliged to put those inconsistencies to the Applicant or provide a commentary on its thought processes in respect of the Applicant’s evidence generally (SZBYR v Minister for Immigration and Citizenship (2007) 325 ALR 609 at [18]).

53.               The Tribunal’s findings were open to it on the evidence and material before it and for the reasons it gave, including its adverse credibility findings. Credibility findings are a matter par excellence for the Tribunal (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J).

13                                          Her Honour also held that s 425 of the Act did not require the Tribunal to put to the appellant at the hearing that it intended to disregard the delegate’s acceptance that the Taliban in Pakistan pressure young men to join them. Her Honour noted that the appellant was on notice from the delegate’s decision that his claims of persecution by the Taliban were in issue before the Tribunal and that he was given an opportunity at the hearing to address the Tribunal’s concerns. Further, her Honour concluded that, properly construed, the Tribunal’s decision was consistent with that of the delegate, as no finding was made in either case that young males in Pakistan or the appellant himself were at risk of persecution from the Taliban or other fundamentalist groups.

the appeal to this court

14                                          The appellant filed a notice of appeal in this Court on 19 March 2010. The hearing of the appeal was initially to occur on 29 April 2010, the matter having been expedited as a consequence of the appellant being held in immigration detention. However, on this date the appellant, who was self-represented, sought an adjournment of the hearing so that he could be represented by counsel whom he had only very recently obtained on a pro bono basis. A fax to the same effect had been sent by the appellant to the Court the previous day. I granted the appellant an adjournment until 26 May 2010 to allow him to be represented by counsel. The matter came on for hearing before me as scheduled on 26 May 2010, with Mr Ower of counsel appearing on behalf of the appellant.

15                                          The notice of appeal contains two grounds of appeal which replicate those in the application to the court below. At the hearing before me counsel for the appellant indicated that only the first ground of appeal was relied upon.  It is in the following terms:

1.         The Federal Magistrate erred in law by not finding that the Refugee Review Tribunal denied the applicant procedural fairness.

Particulars:

The Tribunal made determinations against the applicant on matters that were accepted by the Minister’s Delegate without disclosing to the applicant that the matters were in issue before the Tribunal. As a consequence, the applicant was denied an opportunity to address the Tribunal’s concerns on those issues.

16                                          In support of this ground, the appellant relies upon the two matters advanced before the federal magistrate as involving a departure by the Tribunal from the findings of the delegate, namely his alleged second encounter with the Taliban and the ‘pressure’ exerted by the Taliban on young men. I will consider the ground of appeal in relation to each of these matters separately.

The second encounter with the Taliban

17                                          In order to consider the appellant’s ground of appeal in relation to this matter, it is necessary to begin by considering the relevant finding of the delegate, together with the evidence given by the appellant before the Tribunal and the Tribunal’s finding.

18                                          The delegate’s reasons for decision relevantly state:

…I accept that he was approached on two occasions by men who belong to the Taliban, however by his own admission it was coincidental that the same men he first met in the Swat Valley saw him again in Islamabad and this indicates that they were not following him or specifically targeting him. The incident in Islamabad is the only one that he sighted [sic] as evidence of his claimed fear of returning to Pakistan. I consider this seriously undermines his claimed fear of Convention-related persecution.

19                                          As noted above, the appellant gave evidence before the Tribunal that differed from the evidence he had previously given that the second incident with the Taliban occurred at the Mosque in Islamabad. A transcript of the Tribunal hearing was in evidence before the federal magistrate. The relevant exchange between the Tribunal member and the appellant was as follows:

Member:        So please tell me why you are a refugee.

Applicant:       The situation now in Pakistan is the Taliban – they are in control in some areas & they ask young & youth to come and join them.

…

Member:        From what you’ve just said & from your protection visa application, I’m having difficulty understanding why you are at any real risk from Taliban or other such groups or indeed anyone else.

Member:        I am having difficulty understanding why you are particularly at risk.

Applicant:       They were in control of the village. When I was there I was going to the Mosque. I was praying & they are saying you will have to join us.

Applicant:       And then I went to Rawalpindi & informed my cousin about this – uncle sorry. And then one day I was going to play squash & I saw those people I met in the village & they said yes you are the one that we have met you in the village.

Applicant:       I met them in Pakistan – sorry Islamabad - & then they said to me you cannot hide from us. If you are in Pakistan we can easily find you any place in Pakistan.

Applicant:       And then I went home & I talk to my father about this danger & then after a while I decided to come to Australia.

Member:        How could the Taliban track you down anywhere in Pakistan?

Applicant:       They are present everywhere. They said to me we are everywhere in Pakistan & you can see their presence everywhere in Pakistan & they said to me that I can find you easily. It is not difficult for us to find people.

Member:        How could they track you down? I mean I don’t understand how it would be possible to track you down with no particular profile wherever you went in Pakistan.

Applicant:       The reason that they can find me easily even when I was playing before playing in Islamabad they went to the stadium & they were looking for me.

Member:        Went to where? Excuse me

Applicant:       To the stadium in Islamabad where I was playing there. And so they knew my name & I was playing squash. My name comes in the newspapers, my picture comes in the newspaper & they can easily find me because I am a sports person. It is not difficult for the Taliban to find me. They know my name. They know my appearance. My picture. It is easily find me everywhere.

20                                          The Tribunal set out its key findings in relation to the appellant’s evidence at [52] of its reasons:

… And in regard to his central claim that the second encounter occurred at the Mosque, the applicant contradicted this claim at the hearing when he claimed that this incident occurred when he was on his way to play squash. The Tribunal is satisfied that if this incident had occurred as he claims, then he would have clearly stated the same explanation in both his protection visa application and at the hearing. According[ly], the Tribunal has not been able to satisfy itself that the applicant has indeed been threatened on the second occasion in Islamabad as he claims, and the Tribunal does not accept this claim. It follows that the Tribunal finds this also goes to the matter of his truthfulness, and finds he is not a credible witness.

21                                          It was conceded by counsel for the appellant that the Tribunal’s interpretation of the appellant’s evidence of the second encounter with the Taliban given at the hearing was open to it. However, it was submitted that the appellant’s evidence was not clearly contradictory to the appellant’s previous statements and had been given in the context of the appellant explaining how the Taliban could track him down. Counsel for the appellant submitted that, in these circumstances, the Tribunal was obliged to seek clarification from the appellant before reaching an adverse conclusion in relation to the evidence.

22                                          Counsel for the appellant further submitted that, even if the evidence was inconsistent, once the appellant gave the evidence it became incumbent on the Tribunal to seek clarification from the appellant and to put him on notice of the importance of the potential inconsistency. Reliance was placed by the appellant on the following passage from SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [47]:

…The proceedings are not adversarial and the Tribunal is not, and is not to adopt the position of, a contradictor. But where, as here, there are specific aspects of an applicant’s account, that the Tribunal considers may be important to the decision and may be open to doubt, the Tribunal must at least ask the applicant to expand upon those aspects of the account and ask the applicant to explain why the account should be accepted.

[Emphasis in original]

23                                          I do not think that the passage from SZBEL cited above applies to the present case in the manner contended by the appellant. In Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576, which was referred to in SZBEL (at [29] and [49]),the Full Court (Northrop, Miles and French JJ) stated that in relation to procedural fairness (at 26):

The decision maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material.

[Emphasis added]

24                                          I do not think it can be said that the Tribunal’s findings concerning the second encounter were not, objectively, “obviously open on the known material”. The Tribunal’s findings were based on the appellant’s own evidence, which shifted significantly from what it had previously been. Before the delegate, the appellant’s evidence was consistent with the statements in his visa application. On the basis of this evidence, the delegate accepted that he was approached by members of the Taliban on a second occasion at the Mosque in Islamabad, but found that, based on the appellant’s own admission, this meeting was coincidental. However, the evidence given by the appellant before the Tribunal was very different. Not only did the appellant now claim that the encounter occurred on his way to play squash rather than at the Mosque, but the appellant’s evidence was that the encounter was not a coincidence at all and that the Taliban members had been to the squash stadium looking for him. The inconsistencies in his account were obvious and should have been readily apparent to the appellant. As such, the Tribunal was not obliged to disclose to the appellant that it did not accept his evidence as this was a conclusion obviously open to the Tribunal based on the material provided by the appellant.

25                                          Furthermore, the circumstances of SZBEL are distinguishable from the present case. SZBEL involved a situation where the evidence of the applicant in his visa application and before both the delegate and the Tribunal remained consistent. Without challenging or seeking clarification of the evidence, the Tribunal nevertheless concluded that the appellant’s evidence was implausible and affirmed the delegate’s decision on the basis of issues that were not dispositive before the delegate. In contrast, in the present case the appellant has of his own accord given evidence before the Tribunal that is clearly inconsistent with his previous evidence. In these circumstances, s 425 did not require the Tribunal to inform the appellant that it may make different factual findings in light of the changes to his evidence. This follows from what Edmonds J said in SZHBX v Minister for Immigration & Citizenship [2007] FCA 1169 at [14]:

Section 425, as construed in SZBEL, requires the Tribunal to disclose to an applicant additional issues which were not live issues in the delegate’s decision or otherwise made known to the applicant as being in issue…It is an entirely different matter to say that the Tribunal is bound to treat the applicant’s case before the Tribunal as identical to the case the applicant presented to the delegate. Following the delegate’s decision an applicant may present additional evidence, and/or elaborate upon or change the Convention ground claimed. The Tribunal has a duty to consider the claim as it is presented to it on the basis of all the available evidence. The Tribunal does not have a duty to inform an applicant that because the evidence on which he or she now relies is different from the evidence before the delegate, the Tribunal may make different factual findings.

26                                          The federal magistrate correctly concluded that a proper reading of the decision of the delegate made it clear that, whatever else may have been accepted by the delegate, it did not accept that the appellant was specifically targeted by the Taliban or that threats of the nature alleged by the appellant occurred. The appellant’s claim that he was recognised and approached in Islamabad by the same Taliban members was critical to his claim that he was likely to be targeted for persecution by the Taliban if he returned to Pakistan. It was the only evidence advanced by him to support his claim.  The delegate’s rejection of his claim of targeted persecution included a rejection of the appellant’s evidence supporting this claim and was clearly a matter identified as dispositive by the delegate. As such, both the claim and the evidence in support were “issue[s] arising in relation to the decision under review” in terms of s 425(1) of the Act. The Tribunal was not therefore obliged to take any further steps to put the appellant on notice that his claims in relation to his second encounter with the Taliban remained an issue before it: SZBEL at [35].

27                                          Even if, contrary to my findings above, it is considered that the second encounter with the Taliban was not an “issue arising in relation to the decision under review”, I am of the view that the Tribunal did in fact notify the appellant at the hearing that the entirety of his claim of being targeted by the Taliban in a manner amounting to persecution, including his claims in relation to the second encounter, were in issue before it. The Tribunal asked the appellant to explain why he believed he was a refugee. The Tribunal then stated that, based on the appellant’s answers and his visa application, it was “having difficulty understanding why [the appellant was] at any real risk from Taliban or other such groups or indeed anyone else.” The Tribunal stated that it did not understand how the Taliban could track the appellant down, given that the appellant did not have any particular profile in Pakistan. Furthermore, at the commencement of the hearing, the Tribunal stated:

Member: I’m undertaking a new examination of your application & not just the earlier written decision.

Member: As part of the process I’ll be considering all the evidence you’ve provided including the information you give me today.

Member: I will then make a decision about whether or not you are a refugee.

28                                          In SZBEL, the High Court acknowledged that (at [47]):

…there may well be cases, perhaps many cases, where either the delegate’s decision, or the Tribunal’s statements or questions during a hearing, sufficiently indicate to an applicant that everything he or she says in support of the application is in issue.

29                                          In my view, this was such a case. The Tribunal clearly informed the appellant that it was considering his application afresh, and that it was having considerable difficulties understanding why he in particular was at risk of persecution by the Taliban. The Tribunal’s statements and questions at the hearing in this regard were sufficient to make it clear to the appellant, if it wasn’t already clear from the delegate’s decision, that all of the appellant’s claims relating to his refugee status were in issue before the Tribunal.

30                                          I agree with the federal magistrate that the appellant’s inconsistent evidence did not itself constitute a separate ‘issue’ of which the appellant was required to be notified for the purposes of s 425 of the Act. That section does not require the Tribunal to identify the significance of the questions put to the appellant, or the ultimate issue or matter to which the Tribunal’s questions were directed. Any such requirement would constitute an attempt to import the requirements of s 424A(1) into s 425 (see Minister for Immigration and Citizenship v Applicant A125 of 2003 (2007) 163 FCR 285 at [88]). In effect, what the appellant seeks is a running commentary from the Tribunal regarding the evidence being given. The Tribunal is under no such obligation: SZBEL at [48].

31                                          The appellant’s appeal in relation to this matter fails.

Recruitment of young Muslim males by the Taliban in Pakistan

32                                          In relation to this matter, the principal contention raised by the appellant was that he was denied procedural fairness as a consequence of the failure by the Tribunal to put him on notice that it did not accept his claim, which had been accepted by the delegate, that the Taliban place ‘pressure’ on young men to join their movement.  

33                                          I agree with the reasons and findings of the federal magistrate in relation to this matter. Before the Tribunal, the appellant claimed that a person’s life would be in danger from the Taliban if that person declined to do something asked of them by the Taliban and that as a young Muslim male who regularly went to a Mosque, it was only a matter of time before the Taliban would try to recruit him. These claims went well beyond the general proposition of ‘pressure’ by the Taliban that had been accepted by the delegate, and it was these enlarged claims that the Tribunal did not accept in the absence of any supporting evidence. Given the fundamentally different claims made by the appellant before the delegate and before the Tribunal in this regard, it cannot properly be said that the finding by the Tribunal is inconsistent with that of the delegate, or that, in rejecting the appellant’s claims, the Tribunal has in any way departed from the finding of the delegate.

34                                          Accordingly, no breach of s 425 has been established in relation to this matter.

Conclusion

35                                          For the reasons stated above, the appellant has not established any error by the federal magistrate. The appeal should be dismissed with costs.

Associate:

Dated:         8 July 2010