FEDERAL COURT OF AUSTRALIA

SZTIP v Minister for Immigration and Border Protection [2015] FCA 844

THE COURT ORDERS THAT:

1.    The name of the second respondent be changed so as to read “Administrative Appeals Tribunal”.

2.    The application be dismissed.

3.    The applicant pay the first respondent’s costs, as agreed or taxed.

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

REASONS FOR JUDGMENT

1    This is an application for an extension of time to seek leave to appeal and leave to appeal a judgment of Judge Cameron of the Federal Circuit Court of Australia delivered on 13 April 2015: see SZTIP v Minister for Immigration and Border Protection [2015] FCCA 949 (“SZTIP”). The primary judge dismissed an application for judicial review under r 44.12 of the Federal Circuit Court Rules 2001 (Cth); that was an interlocutory decision: see r 44.12(2). The applicant had sought judicial review by the Federal Circuit Court of a decision of the Refugee Review Tribunal affirming a decision of a delegate of the Minister made on 1 August 2012 to refuse to grant the applicant a Protection (Class XA) visa under s 65 of the Migration Act 1958 (Cth).

2    The Minister made an application to amend the name of the second respondent to “Administrative Appeals Tribunal”. I granted that application.

Background

3    The applicant is a male citizen of Pakistan, born in Karachi in 1988. He arrived in Australia on 25 January 2009 on a student visa. On 26 March 2010, he lodged a further application for a student visa while he was in Australia. This student visa expired on 22 December 2011 and he applied for a protection visa on that day.

4    The basis for the applicant’s claim for protection was set out at [6] of the Tribunal’s Statement of Decision and Reasons dated 28 August 2013 (“Decision Record”) as follows (footnote omitted):

The applicant is a Shia Muslim. His parents and his brother still live in Karachi. The applicant claims to have been prominent in the Shia community in Karachi. While in Karachi on holiday, in February 2010, the applicant claimed to have witnessed a bombing and to have been severely traumatised as a result. He provided a document claimed to be from a medical practitioner in Karachi who treated him after the bombing. The applicant claims that he was threatened by members of Seppah-i-Sahaba who called his parents after the applicant had returned to Australia. The applicant also claimed that his brother in Pakistan continues to receive threats. He claimed these threats were made because the applicant has prominence in the Shia community. In Australia, he claimed, the applicant was threatened by Seppah-i-Sahaba via Facebook.

Tribunal Decision

5    The Tribunal affirmed the delegate’s decision on 28 August 2013. The Decision Record reveals the following matters.

6    The applicant provided a number of documents to the Tribunal:

    A psychologist’s report dated 12 December 2010. The psychologist said that she had been asked to provide the report to assist in an assessment of the applicant’s ability to continue studying. The psychologist noted that the report was limited by the extent of information before her derived from interviews with the applicant and his family, a letter from a medical practitioner and media reports of the bombing. The assessment was not part of usual psychological treatment for the applicant. Her assessments “were congruent with the applicant’s account of psychological harm that has occurred since the bomb blasts” and that the applicant would benefit from counselling. The Tribunal accepted that the applicant was diagnosed with post-traumatic stress disorder and that he attended one further counselling session with the psychologist. The Tribunal noted the limitations on the psychologist’s report and gave weight to the fact that the applicant received no other counselling nor did he take medication for his condition. The Tribunal confirmed that he was well enough to participate in the hearing: [13], [21]-[22].

    Photographs of demonstrations in Australia in which the applicant was not featured and a photograph which the applicant claimed was of himself during a Shia procession in Pakistan: [15].

    Web pages dealing with the situation of Shias in Pakistan: [15].

    A document which the applicant claimed to be from a medical practitioner in Karachi who treated him after the bombing: [6] and [36].

7    The Tribunal found the applicant not to be a reliable witness because of inconsistencies and discrepancies in central components of the applicant’s evidence that detracted from the plausibility of his claims and his overall credibility in the Tribunal’s view: [24].

8    The Tribunal did not find the applicant to be credible in his explanation for not applying for the protection visa until 22 months after his return to Australia in February 2010: [25]. The Tribunal noted that the date on which the applicant applied for a protection visa was the exact date on which the applicant’s student visa expired. The Tribunal found that if the applicant had experienced the bombing and its aftermath and the claimed threats he would be expected to have applied for protection earlier and that while the psychologist’s report focussed on issues connected with the cancellation of his student visa he continued to attempt to study in Australia rather than lodge an application for a protection visa: [31].

9    After discussing the claims made by the applicant and the evidence and material he provided in support, the Tribunal summarised its conclusions at [54]-[56] as follows:

[54] I note that the applicant has claimed that there is genocide against the Shia population in Pakistan and that there is systemic targeting of individual Shia. On the basis of the evidence before me, including the applicant’s evidence at the hearing, I do not accept that the applicant, who left Pakistan in 2009, has the profile he is claiming for himself. I do not accept that his role in the Shia community was such that it would bring him to the attention of any of the Sunni extremist groups known to operate in Pakistan. I do not accept that his family providing donations to Shia charitable organisations, the applicant’s participation in Shia religious festivals and his claimed posting of remarks on Facebook ground his claim to such a profile.

[55] On the basis of the evidence before me, including at the hearing, I do not find credible the applicant’s claim that he was threatened that he would be killed if he did not return to Australia in February 2010. I also do not find credible that the applicant’s family have received threats, some relating to the applicant, since that time. I also do not find credible the claims that the applicant has received further threats in Australia, including on social media sites, that he will be killed if he returns to Pakistan.

[56] I accept that there is a problem of sectarian violence throughout Pakistan and that this violence continues to cause hundreds of deaths in that country. As I put to the applicant at the hearing, Shia Muslims constitute around 25 per cent of the population in Pakistan or at least 40 million people. I consider that the chance of any individual Shia Muslim being killed or injured in this sectarian violence is therefore very remote. I do not accept that there is a real chance that the applicant will be killed or injured or otherwise persecuted in the context of sectarian attacks on Shia Muslims, or that he will be prevented from practising his religion, if he returns to Pakistan. …

10    For those reasons, the Tribunal was satisfied that there was no real chance that the applicant would suffer serious harm for reason of his religion now or in the reasonably foreseeable future if he were to return to Pakistan: [57]; or that the applicant had a well-founded fear of persecution for reason of his actual or imputed political opinion: [58]; or that the applicant would suffer serious harm if he returned to Karachi by reason of his membership of a particular social group, however defined, arising from the fact that he had adopted a “western style of dress” and had been exposed to a “western lifestyle”: [59].

11    For similar reasons, the Tribunal also found that the applicant was not entitled to the protection afforded by the “complementary protection” provisions of the Migration Act: [60]-[66].

Federal Circuit Court Decision

12    The applicant applied for review of the Tribunal’s decision in the Federal Circuit Court by an application dated 3 October 2013 and amended on 19 December 2013. The applicant’s application listed seven grounds of review (as written):

1.    The Tribunal did not use the country information as specific however, the general information gathered by the Tribunal considered to weigh against my case in the final outcome. The Tribunal used all information for matter of reasoning and evaluation of my case for the protection visa. The Tribunal was preoccupied and did not have a fresh look. The Tribunal also failed to consider the Amnesty International country information.

2.    The Tribunal constructively failed to exercise its jurisdiction;

Particulars:

The applicant provided documents to the Tribunal to corroborate his claims. The Tribunal failed to engage in an active intellectual process of these documents. The Tribunal ultimately gave the documents no weight on the basis of credit findings. It was an error for the Tribunal to place no weight on the documents without engaging to the contents of those documents. It was an error for the Tribunal to assess the applicant’s credit without first assessing whether the substance of the documents corroborated his claims.

3.    The Tribunal failed to consider an integer of Applicants claim, in failing to consider whether or not a Shia live in Pakistan was at risk of harm from radical Sunnis, and not able to access effective protection whilst the Tribunal formed the view that the applicant was a credible witness.

4.    The Tribunal had no jurisdiction to make the said decision because its “reasonable satisfaction” was not arrived in accordance with the provisions of the Migration Act.

5.    The member of the Tribunal 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 applicant was a refugee within the meaning of the Act. In such circumstances the Tribunal erred in that:

(a)     it failed to properly apply the consideration that applicant’s for refugee status ought to be given the benefit of the doubt in circumstances where the Tribunal entertained the possibility that the applicant’s claims are plausible which was the case here.

6.    The Tribunal did not give to the applicant before the hearing the independent information that it had about Shia in Pakistan. The Tribunal used this information. This was against section 424A of the Migration Act 1958.

7.    The Tribunal has failed to investigate applicant claims, specially the grounds of persecution in Pakistan. Therefore, the Tribunal’s decision dated 28 August 2013 was effected by actual bias constituting judicial error.

Therefore the applicant submit that the Tribunal failed to analyse properly the “future harm” the applicants may face if he were to be returned to Pakistan.

Hence, due to this failure, the Tribunal had committed a serious jurisdictional error by failing to assess or carry out the ‘real chance’ test, before dismissing the applicant’s claims.

13    The primary judge dismissed ground one because: it raised issues as to the Tribunal’s findings of fact, which were beyond the Court’s jurisdiction; although it appeared to raise an allegation of bias it did not identify the basis for the allegation; it did not particularise the allegation as to the quality of the Tribunal’s review; and to the extent that the ground complained that an Amnesty International report was not considered, the primary judge found that neither the relevant report, nor why that report should have been considered, was identified by the applicant, and in any event his Honour found that the Tribunal did consider an Amnesty International report: SZTIP at [10]-[12].

14    In relation to ground two, the primary judge noted that the applicant did not identify any particular document which was said not to have been considered by the Tribunal, and in any event, it was clear from the Tribunal’s reasons that the Tribunal did deal with the material provided by the applicant: SZTIP at [13]-[14]. The primary judge was not persuaded that the Tribunal failed to give “proper, genuine and realistic consideration to material of potential relevance” submitted by the applicant. Although the photographs of demonstrations in Australia were not particularly considered, the primary judge found that there was no failure of duty on the part of the Tribunal as the photographs did not depict the applicant and their relevance was elusive: SZTIP at [14].

15    As to ground three, the primary judge found that it proceeded from a false premise, that the Tribunal found that the applicant was a credible witness: SZTIP at [15]. Moreover, to the extent that the applicant alleged that the Tribunal failed to consider whether or not Shias who live in Pakistan were at risk of harm, the Tribunal recognised the problem of sectarian violence in Pakistan but found that the applicant did not face a real chance of harm because of it and therefore did not fail to consider the applicant’s claim: SZTIP at [16].

16    The primary judge dismissed ground four because it did not identify a basis to find error with the Tribunal’s finding that it was not satisfied that the applicant had made out his claims: SZTIP at [17].

17    In relation to ground five, the primary judge held that the Tribunal was under no obligation to give the applicant “the benefit of the doubt” and it identified no error of law which affected the Tribunal’s fact finding: SZTIP at [18]. Further, the ground invited the Court to review the Tribunal’s findings on the merits, which was impermissible: SZTIP at [18].

18    As to ground six, the primary judge held that no breach of s 424A of the Migration Act had been identified by the applicant: SZTIP at [19]. The information referred to by the applicant was excluded by s 424A(3)(a) from the notification obligation in s 424A(1).

19    Finally, the primary judge dismissed ground seven because: the Tribunal had no general duty to undertake investigations, and it was not shown that the Tribunal had a particular duty to do so in the present case; the Tribunal did not need to undertake the analysis for which the applicant contended because it found that the applicant did not face a real chance or a real risk of serious or significant harm respectively if returned to Pakistan; and it was clear that the Tribunal did apply the real chance and real risk tests as shown by the Decision Record at [59] and [66]: SZTIP at [20]-[22].

20    The primary judge dismissed the application pursuant to r 44.12 of the Federal Circuit Court Rules.

Application to this Court

21    The application for extension of time lists two grounds (as written):

1.    The FM failed to consider that the Tribunal acted in a manifestly unreasonable way when dealing with the applicant claims and ignoring the aspect of persecution and harm in terms of Sec.91R of the Act. The Tribunal failed to observe the obligation amounted to a breach of Statutory Obligation.

2.    The Hon. Judge Emmett dismissed the application without considering the legal and factual errors contained in the decision of RRT.

22    The applicant also filed a draft notice of appeal which lists two proposed grounds of appeal (as written):

1.    The FM failed to consider that the Tribunal had denied the applicant procedural fairness reaching adverse conclusions that applicant claims were implausible, being conclusions that were not obviously open on the known material.

2.    The learned Federal Magistrate has dismissed the case without considering the legal and factual errors contained in the decision of the RRT. The Tribunal has failed to investigate Applicant claims, specially the grounds of persecution in Pakistan.

23    The applicant’s explanation for his failure to file on time appears at [4] of an affidavit filed in this Court on 4 May 2015. The paragraph reads (as written):

I could not appeal on time because I trapped in floodwater. There was no electricity and our area was declared natural disaster zone.

24    As the primary judge’s judgment is interlocutory in nature the applicant requires leave to appeal to this Court: s 24(1A), Federal Court of Australia Act 1976 (Cth). Under r 35.13(a) of the Federal Court Rules 2011 (Cth), an application for leave to appeal must be filed within 14 days of the date on which the judgment from which the appeal is sought was pronounced or the order is made. The primary judgment was delivered and orders were made on 13 April 2015; the application should have been filed by 27 April 2015. The applicant requires an extension of seven days.

25    In determining the application for an extension of time, the Court has regard to the length of the applicant’s delay in lodging the application and reasons for the delay; any prejudice to the respondent if the extension were granted; and the merits of the appeal: Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344.

26    Leave to appeal from an interlocutory judgment requires the applicant to show that there is sufficient doubt as to the correctness of the judgment below, and further, that if the judgment below is assumed to be wrong, substantial injustice would be suffered by the applicant if leave to appeal were refused: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397.

Consideration

27    The Minister opposes the grant of an extension of time to seek leave to appeal and leave to appeal on the basis that the proposed grounds of appeal have no prospects of success. The Minister noted that the applicant’s grounds for extension of time and proposed grounds of appeal are different from those raised in the Federal Circuit Court and as a result leave would also be required for those grounds.

28    The applicant offered no written submissions and explained that the grounds to the Federal Circuit Court and the grounds in relation to the application for extension of time and leave to appeal were prepared by different lawyers. He did not offer any further explanation in relation to the proposed grounds.

29    In relation to the applicant’s grounds:

    I accept the Minister’s submission that the grounds in the application and the draft notice of appeal are template grounds which have been raised in several proceedings before this Court. I note that ground two of the application for extension of time refers to a Judge of the Federal Circuit Court who was not the primary judge from whose judgment the applicant seeks leave to appeal. I am prepared to accept that the grounds generally express dissatisfaction with the outcome of the application to the Federal Circuit Court.

    The Tribunal did consider, but did not accept, the applicant’s claims to fear persecution and serious harm as noted previously in this judgment. The Tribunal’s findings of fact, including as to the applicant’s credibility, were open to it to make for the reasons the Tribunal gave. Those reasons did not lack evident and tangible justification nor were they findings at which no rational or logical decision maker could arrive on the same evidence.

    There is nothing before this Court which shows that the Tribunal failed to comply with its obligations under Div 4 of Pt 7 of the Migration Act or more general concepts of procedural fairness. The applicant was invited to a hearing by the Tribunal which he attended on 20 August 2013. The Tribunal member considered the applicant’s documentary and oral evidence and put issues of concern arising from that evidence to the applicant for comment including issues raised by the delegate’s decision record. The Tribunal member also put to the applicant issues raised by general “country information” concerning sectarian violence experienced by Shia Muslims in Pakistan and considered the likelihood of the applicant being exposed to that violence having regard to the significant proportion of the population of Pakistan which Shia adherents comprise; the primary judge was correct to note that the “country information” fell within the exception set out in s 424A(3)(a) of the Migration Act.

    The primary judge did not err by finding that the Tribunal was under no obligation to investigate the applicant’s claims. The applicant did not identify any failure by the Tribunal to inquire into a critical fact whose existence would be easily ascertained.

    The applicant did not identify other “legal and factual errors” in the decision of the Tribunal which the primary judge failed to consider. I have carefully considered the Tribunal’s Decision Record and the primary judge’s reasons. I do not perceive any appellable error on the part of the primary judge or jurisdictional error on the part of the Tribunal.

30    The applicant’s proposed grounds lack merit and disclose no reasonable prospect of success upon appeal if an extension of time and leave to appeal were granted. I will dismiss the application for extension of time, even though the period of delay was short, the applicant’s reasons were not contested by the Minister and are acceptable and the Minister conceded that he would not suffer prejudice by reason of the extension being granted.

31    I will order that the applicant pay the first respondent’s costs, as agreed or taxed.

Associate:

Dated:    13 August 2015