FEDERAL COURT OF AUSTRALIA

MZYWL v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 895

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

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

3.    The title of the proceeding be amended to show the first respondent as the “Minister for Immigration, Multicultural Affairs and Citizenship”.

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

REASONS FOR JUDGMENT

1    This is an appeal from a judgment of the Federal Magistrates Court (now the Federal Circuit Court) published as MZYWL v Minister for Immigration & Anor [2012] FMCA 907, in which the primary Judge dismissed the appellant’s application for judicial review. The primary Judge reviewed a decision of the Refugee Review Tribunal (“the Tribunal”) which affirmed a decision of a delegate of the first respondent (“the Minister”) not to grant the appellant a Protection (Class XA) visa (“Protection Visa”).

2    The task of the Federal Magistrates Court in dealing with the judicial review proceedings brought by the appellant was to determine whether the Tribunal’s decision was affected by jurisdictional error: s 476 of the Migration Act 1958 (Cth) (“the Migration Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

3    The task of this Court in relation to the appeal brought by the appellant is to determine whether the judgment of the primary Judge is affected by appealable error: SLMB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 129 at [11] (Branson, Finn and Finkelstein JJ).

BACKGROUND

4    The appellant is a citizen of Pakistan who first arrived in Australia as a holder of a student visa in 2007. On 9 February 2011, the appellant lodged a claim for a Protection Visa on grounds that he feared persecution as a Pakistani Christian who had been romantically involved with and sought to marry a Pakistani woman of Islamic faith.

5    The appellant claimed to have developed a romantic relationship with the sister of his friend and the pair had planned to marry in 2007. Before leaving to study in Australia, the appellant approached a pastor requesting that he marry the couple but the pastor refused to do so, on account of the dangers of being involved in a marriage of the kind contemplated.

6     The appellant claimed that the families of the couple did not object to their marriage so long as each was allowed to practice their own religion. The appellant claimed that the couple did not disclose their mutual attraction or the existence of their relationship to others in the community.

7    While in Australia, the appellant maintained contact with his fiancée and her brothers and in 2009, the appellant returned to Pakistan for a short visit. The appellant stated before the Tribunal that during his 2009 visit to Pakistan, his fiancée’s family would only permit the appellant to visit his fiancée at her family home late at night so that their relationship could remain secret.

8    In December 2010 the appellant again returned to Pakistan, this time to take part in his sister’s wedding, which took place on 5 January 2011. During this trip, the appellant again visited his fiancée late at night at her family home. The appellant claimed that he devised a plan with his fiancée and her family for the pair to marry in Singapore and for the appellant to take his fiancée to Australia and to assist her to obtain a visa for Australia as his dependent.

9    The appellant stated to the Tribunal that on the evening of 5 January 2011, after his sister’s wedding, he went to visit his fiancée. During that visit, the appellant claimed that a group of “unknown Muslim men” entered the residence and the appellant was beaten severely for planning to marry a Muslim woman. The appellant stated that he lost consciousness from the beatings and awoke in prison where he was told that he would be sentenced under Sharia law for having an affair with a Muslim woman without the knowledge of her parents and for planning to convert her to Christianity. The appellant stated that over the following four to five days he was beaten, raped and starved. The appellant claimed he was released after his father promised that the appellant would convert to Islam and fight in the holy war and would not see his fiancée again. Following his release from custody the appellant fled to Australia where he applied for a Protection Visa.

10    In the weeks after the appellant fled to Australia, the appellant claimed his family was harassed at the family home and that they decided to move to a nearby Christian enclave. Following the move, the appellant claimed his family continued to be beaten and harassed and that as a result, his brother and sister moved to another city. The appellant’s father lives and works abroad and his mother remained in the Christian enclave.

THE TRIBUNAL decision

11    In affirming the decision of the delegate of the Minister not to grant the appellant a Protection Visa, the Tribunal found that the appellant had fabricated his claims to support his application. While accepting the appellant is a Pakistani Christian, the Tribunal expressly rejected the appellant’s claim that he was ever in a relationship with a Muslim woman which had caused him or his family any difficulty. The Tribunal noted reports of harm directed at Christians in Pakistan. It noted that such reports often arise in the context of fraught personal relationships. The Tribunal considered that the appellant’s fabrication of such a profile for himself supported the view that merely being a Christian is not sufficient to attract persecution in Pakistan. The Tribunal concluded that the appellant did not hold a well-founded fear of persecution for “any reason” should he return to Pakistan and that he therefore did not satisfy the criteria for a grant of a Protection Visa under s 36(2) of the Migration Act (at [72]).

12    The conclusion reached by the Tribunal was based on the Tribunal’s view that the appellant was not a credible witness. A number of specific findings can be identified which led the Tribunal to conclude that the appellant did not present a truthful account of his past experiences and did not have a well-founded fear of significant harm should he be returned to Pakistan. Those findings may be summarised as follows:

(i)    that it is implausible that the appellant would have returned to Pakistan (from Australia) in 2009 and 2011 if he was genuinely in a relationship with a Muslim woman and feared persecution (at [64]-[65]) and;

(ii)    that the appellant’s claims about the interest in him and his family since his departure from Pakistan in early 2011 are implausible, particularly in light of the appellant’s various accounts about the circumstances in which his mother was left alone at the family home where he claimed extremist groups had harassed the family. The Tribunal’s concerns included its finding that if these claims were true, there would have been more direct and detailed reference to such difficulties in the appellant’s written statement given to the Department (at [66])-[68]).

ISSUES RAISED ON APPEAL

13    The appellant was not legally represented and the grounds referred to in the notice of appeal lack clarity. The grounds expressly raised in the notice of appeal may be summarised in the following terms:

(i)    that the Tribunal exceeded its jurisdiction and failed to exercise its jurisdiction by rejecting the appellant’s evidence and refusing to believe the appellant;

(ii)    that the Federal Magistrates Court failed to identify that the Tribunal had failed to accept that the appellant’s claims established a Convention nexus;

(iii)    that the Tribunal failed to afford the appellant procedural fairness by making adverse credibility findings in relation to the appellant’s failure to give details of the harassment of his family members in his application for a Protection Visa, having only raised the matter orally with the appellant without giving the appellant an opportunity after the hearing to submit further particulars in writing justifying his oral response; and

(iv)    by finding that the appellant “would simply make any statement to support his claims”, the Tribunal failed to discharge its statutory obligations to consider the appellant’s claim for a Protection Visa.

consideration

14    Ground (ii) is the only ground which expressly alleges an error by the primary Judge. The ground is misconceived. The Tribunal did not make the kind of error that the ground asserts the primary Judge failed to identify. The decision of the Tribunal was based on the preparedness of the Tribunal to accept that persecution by reason of an inter-faith relationship between a Christian man and a Muslim woman could establish a well-founded fear of persecution for a Convention reason. The Tribunal did not dismiss the appellant’s application because the Tribunal considered his claims were incapable of establishing a Convention nexus. The Tribunal dismissed the application because it did not believe the appellant’s claims of prior persecution. Ground (ii) must be dismissed.

15    Ground (iii) asserts a failure to afford the appellant procedural fairness. I will deal with that ground of challenge as though it includes an assertion that the primary Judge failed to identify that the Tribunal denied the appellant procedural fairness. The appellant contended that the Tribunal failed to provide him with an opportunity after the hearing to provide further particulars about a matter raised during the hearing. This ground is also misconceived.

16    The Tribunal had regard to the fact that the appellant failed to give details of his family members’ harassment in the written statement made by the appellant prior to the hearing. The Tribunal regarded the absence of that detail in the written statement as impugning the veracity of the appellant’s claims, made in the course of the hearing, that his family had been harassed. The Tribunal put that inconsistency to the appellant at the hearing and afforded him the opportunity to respond and the appellant gave an explanation (see at [41]). The Tribunal had regard to that explanation (at [68]). The inconsistency between the appellant’s written statement and the evidence given at the hearing was a matter which was capable of being addressed at the hearing and the appellant was given the opportunity to address it. As a matter of fairness to the appellant, the circumstances did not call for a further opportunity to be afforded to the appellant to explain the inconsistency and there was no obligation upon the Tribunal to provide it. In any event, the appellant made no request to the Tribunal for any such further opportunity. Ground (iii) must be dismissed.

17    The other two grounds raised by the appellant challenge the Tribunal’s rejection of the evidence given by the appellant and the credibility finding upon which the Tribunal’s decision is based.

18    At the hearing, I also raised a concern as to whether aspects of the credibility finding made by the Tribunal were open to be made by it. That issue was the subject of further written submissions filed with my leave by the Minister. A responding submission was filed by the appellant, but its content need not be addressed as, in so far as anything not previously put was raised, it strayed well beyond the issue relating to the credibility finding and thus was well outside the leave given for the appellant to file a responsive submission.

19    At [62] and [64] of its decision, the Tribunal made plain its view that it regarded the appellant’s return to Pakistan in 2009 and also in 2011 as “inexplicable” if, in fact, the appellant held a well-founded fear of persecution from Islamic militant groups arising from his inter-faith relationship with a Muslim woman. The Tribunal’s conclusion appears to me to be based on an inadequate factual foundation.

20    If the Tribunal had made a finding that the appellant’s fear of harm by reason of the inter-faith relationship had existed as early as 2009, it may well have been entitled to find that it was inexplicable for the appellant to have returned to Pakistan in 2009 and 2011. However, the Tribunal did not make such a finding. The Tribunal’s view that the appellant’s return to Pakistan in 2009 and 2011 was inexplicable, seems only to be supported by a finding that the appellant was aware from 2007 of the difficulties which an inter-faith relationship “could” cause for him (at [64]). Such an awareness, on its own, does not necessarily suggest that the return to Pakistan in 2009 and 2011 was inexplicable. It was not inexplicable for the appellant to have returned to Pakistan despite being aware of the potential for harm if he had a basis for believing that the risk of potential harm was minimal. In other words, if the risk of harm to the appellant was not appreciated by him as being real and significant his decision to return to Pakistan was not “inexplicable”.

21    The significance of the risk of harm by reason of the inter-faith relationship was logically dependent upon the discovery of the relationship by the Islamic groups that were likely to take issue with such a relationship. It was the appellant’s evidence that the existence of the relationship was known to the immediate families involved but a decision had been made to keep the affair secret from others. In the absence of a finding that the appellant appreciated that the affair was known or that there was a significant risk that it would become known to those persons who were likely to harm him, it was erroneous for the Tribunal to conclude that the appellant’s return to Pakistan was “inexplicable”.

22    It may well be that the Tribunal held a view that the affair had or was likely to come to the attention of those whom the appellant feared would harm him. There was some evidence given by the appellant which was inconsistent with his other evidence that the affair had been kept secret. However, if the Tribunal was of that view, it did not express it. Instead, it expressed its finding that the visits were “inexplicable” on the inadequate foundation that the appellant appreciated that an inter-faith relationship “could” cause difficulties.

23    The observations of Tamberlin and RD Nicholson JJ in W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703 at [67] are pertinent. Their Honours said:

Where the question of credibility is determinative of a tribunal decision, to simply assert that the tribunal considers the applicant's account to be “implausible” or “highly unusual” does not constitute a finding on the question raised. Such expressions are more in the nature of observations or side comments rather than findings. The reasoning process and supporting evidence that forms the basis on which a finding that evidence is rejected should be disclosed and clear findings made in direct and explicit terms. It is not sufficient simply to make general passing comments on general impressions made by the evidence where the issue is important or significant.

24    If the only basis for the finding that the appellant had fabricated his claims was the fact that he had returned to Pakistan, I may have found that the Tribunal’s decision was tainted by jurisdictional error. I respectfully agree with the observation made by Robertson J in Minister for Immigration and Citizenship v SZRKT [2013] FCA 317 at [78] that it is not the case “that a finding in relation to credit may never found a conclusion of jurisdictional error, particularly where a finding on credit on an objectively minor matter of fact is the basis for the tribunal’s rejection of the entirety of the applicant’s evidence and the entirety of the applicant’s claim”.

25    However, I accept the Minister’s submission that the Tribunal’s finding that the appellant’s claims were fabricated was not only based on the view taken by the Tribunal about the return of the appellant to Pakistan.

26    At [62] the Tribunal said:

In the tribunal’s view the claims of the [appellant] are so implausible and far-fetched and his behaviour in returning to Pakistan in 2009 so inexplicable that the only conclusion which can be reached is that he has fabricated claims to support this application.

(Emphasis added.)

27    The conjunctive use of “and” in the passage quoted supports the conclusion that beyond the appellant’s behaviour in returning to Pakistan, there was another basis for the Tribunal reaching its view that the appellant had fabricated claims to support his application.

28    Further, immediately after dealing at [63]-[65] with the appellant’s behaviour in returning to Pakistan, at [66] the Tribunal said that it “also rejects the claims of any past harms or current fear of return because of the implausible nature of [the appellant’s] claims about interest in him since his most recent departure from Pakistan”. The Tribunal then evaluated the appellant’s claims of continued interest in him and his family by extremist groups. In particular, the Tribunal considered that the appellant’s evidence that his mother had been left alone at the family home in the Christian enclave to be implausible given the appellant’s evidence that it was at that home that extremist groups had been harassing his family. In coming to that view, the Tribunal took into account the appellant’s conduct at the hearing, including the range of explanations given by the appellant throughout the course of the hearing seeking to explain why his mother had been left on her own. It was the appellant’s evidence on that issue given over the course of the hearing which the Tribunal said demonstrated that the appellant would simply make any statement to support his claims without any regard for the truth. That, as the Tribunal said at [67], caused it to doubt the appellant’s credibility overall and to reach the view that he had fabricated a story of a past relationship and harms flowing from it in order to support his application.

29    Those adverse findings were open to the Tribunal and were open to be deployed by the Tribunal as a basis for disbelieving the appellant’s claims separately from and independently of the Tribunal’s view that the appellant’s credibility was impugned by his behaviour in returning to Pakistan in 2009 and 2011.

30    Although the Tribunal was wrong to impugn the appellant’s credibility on the basis of his return to Pakistan, that error was not jurisdictional. For the reasons I have explained, it was open to the Tribunal to find, on the basis of other probative evidence, that the appellant had fabricated his claims and that consequently he did not have a well founded fear of persecution should he be returned to Pakistan. The existence of probative evidence in support of the credibility finding denies the existence of jurisdictional error based on the ground of illogicality or irrationality. A reasonable decision maker could have arrived at the same conclusion even if the evidence of the appellant’s return to Pakistan was wholly disregarded: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611. Nor can the ‘no evidence’ ground for jurisdictional error be made out when there was evidence (beyond the evidence relating to the return to Pakistan) which supported the credibility finding made by the Tribunal: W148/00A at [69] (Tamberlin and RD Nicholson JJ).

31    In light of those conclusions, grounds (i) and (iv) must also be dismissed.

32    It follows that I should make orders dismissing the appellant’s appeal and requiring the appellant to pay the Minister’s costs of the appeal.

Associate:

Dated:    5 September 2013