SZNDW v Minister for Immigration & Anor [2009] FMCA 389 (6 May 2009)

Last Updated: 24 June 2009

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNDW v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 389

MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – Tribunal did not misapply relevant tests – applicant’s subjective fear had to be objectively well-founded – actual bias on the part of the Tribunal not proved – determination of which information will form the basis for the Tribunal’s decision is a matter for it – Tribunal under no obligation to make enquiries – discretion to make enquiries pursuant to s.427 of the Migration Act 1958 not demonstrated to have miscarried.

Migration Act 1958, ss.415, 427, 474

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 Minister for Immigration & Ethnic Affairs v Liang [1996] HCA 6; (1996) 185 CLR 259 Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630 Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 507 NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 VQAB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 104 Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12

Applicant:

SZNDW

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 96 of 2009

Judgment of:

Cameron FM

Hearing date:

28 April 2009

Date of Last Submission:

28 April 2009

Delivered at:

Sydney

Delivered on:

6 May 2009

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents:

DLA Phillips Fox

ORDERS

(1) The application be dismissed.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 96 of 2009

SZNDW

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant is a citizen of Pakistan where he claims he attracted the adverse interest of religious extremists after he publicly expressed views promoting peace and gender equality and spoke out against the mistreatment of women.
2. The applicant claims to fear persecution in Pakistan because he anticipates that religious extremists will seek to harm him.
3. After his arrival in Australia on 9 May 2008 the applicant lodged an application for a protection visa. This was refused by the Minister’s delegate on 3 October 2008. The applicant then applied to the Refugee Review Tribunal (“Tribunal”) for a review of that departmental decision. The applicant was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
4. In these judicial review proceedings the Court’s task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act 1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
5. For the reasons which follow, the application will be dismissed.

Background facts

6. The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4 – 8 of the Tribunal’s decision (Court Book (“CB”) pages 134 – 138). Relevant factual allegations are set out below.
7. In a statement attached to his application for a protection visa, the applicant made the following claims:
   1. he is a teacher, businessman and human rights activist who promoted peace and advocated for equality between men and women;
   2. his views were controversial in the area where he lived. Those who opposed him wanted to kill him and he received threats made by a local religious group, “Lashkar-e-Taiba”;
   100. he believed in equal rights for girls and as a primary school teacher, he incorporated his beliefs into his teaching. Orthodox Muslims complained to school authorities and he was warned;
   4. on one occasion he was invited to meet the local Lashkar-e-Taiba leader who told him that he was known to have introduced western styles of teaching;
   5. the leader told the applicant that although he and other leaders respected him, they were concerned that he was introducing an American way of life and told him to stop teaching western ideology, not to send his daughter to school, to leave the area and change his work;
   6. he was threatened that his daughter would be kidnapped and his family killed if he did not comply and he promised many things to make the leader happy. He escaped without harm; and
   7. when Ms Zille Huma, a provincial minister, was assassinated by Lashkar-e-Taiba in 2007, he spoke out against the killing and mobilised more than 1000 people to protest against the group and subsequently became the “number one enemy” of the Lashkar-e-Taiba. A few days later a student informed him that Lashkar-e-Taiba planned to destroy his house and to kill him and his family. He sent his wife and children to another place, stopped going to work and came to Australia.
8. The applicant appeared before the Tribunal on 16 December 2008 to give evidence and present arguments, where he repeated his claims and added the following:
   1. when threatened by the Lashkar-e-Taiba leader in 2002 he did not comply with their demands and although he was cautious and more discreet in expressing his views he did not conceal them;
   2. he worked as a teacher from 1993 to 2008, lived in the same village from birth until his arrival in Australia and expressed his views at work and in the community;
   100. he agreed with the Tribunal that Ms Huma’s assassin worked alone but elements in society supported the assassin’s views regarding women and, although he was not threatened directly in this regard, he claimed it was only a matter of time before someone harmed him for his views;
   4. the Tribunal noted that although Ms Huma was assassinated on 21 February 2007, the applicant remained in Pakistan until May 2008 and there was opportunity for anyone who wanted to harm him to do so. In response he said that he was careful during this period, spent most of his time at work, home or the mosque;
   5. he agreed with the Tribunal that he had not been harmed in Pakistan but was afraid that someone in the community would object to his views and seek to harm him in the future;
   6. after the applicant left Pakistan, his wife and five children lived with his wife’s parents and then with his wife’s sister, however, they returned to their village to live with the applicant’s parents because moving was disruptive to the children’s academic and religious education. As far as he knew his family were safe and well;
   7. he could not identify anyone in particular whom he feared, but he feared religious people and religious groups in Pakistan and although Lashkar-e-Taiba no longer exists, its members are still there;
   8. the applicant stated that it was only a matter of time before he was hurt or killed and said that he would not have left his family if he did not believe that there was a real threat to his life; and
   9. the applicant claimed that it would be impossible for him to relocate from his village because:
      1. his family home is there and his children are being educated there;
      2. he does not have the funds to relocate, he has a job as a teacher there and would not have work elsewhere in Pakistan; and
      3. it is not easy to relocate in Pakistan and he would not be able to do so.

The Tribunal’s decision and reasons

9. After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”). The Tribunal’s decision was based on the following findings and reasons:
   1. the Tribunal accepted that the applicant publicly expressed views that might not conform with the views of religious extremists, that he was threatened by a local leader of Lashkar-e-Taiba in 2002, that he participated in a protest in 2007 against the killing of Ms Huma and that he is afraid of harm from religious extremists in Pakistan;
   2. however, the Tribunal was not satisfied that the applicant’s fear of harm is well-founded, finding that:
      1. if the applicant’s views had attracted the adverse interest of religious extremists who had a real interest in harming him, they had had sufficient time and opportunity to do so, noting that he has been expressing his views for approximately fifteen years and his views are well known in the community where he lived and where his wife and children currently live;
      2. no religious extremists, individuals or groups have demonstrated any apparent interest in harming the applicant in Pakistan, noting that it is mere speculation on his part that he was, or will in the reasonably foreseeable future, be a person of particular interest either to individual religious extremists or to groups such as Laskhar-e-Taiba;
      3. the incident in 2002, when he was approached and threatened by a local Lashkar-e-Taiba leader, was an isolated incident, not a real threat against the applicant and his family and had no bearing on his current and future circumstances;
      4. the applicant was not a person of particular adverse interest to Lashkar-e-Taiba or any other extremists in Pakistan;
      5. although differing interpretations of Islam continue to be a source of conflict and violence in Pakistan and the applicant’s more liberal interpretation would not be acceptable to some, his views are not so radical or controversial as to result in any particular adverse interest from any individual or group; and
      6. although the area where the applicant lived is a particularly conservative region of Pakistan and a dangerous place to express alternative views on Islam, the applicant had expressed his views over a long period of time, was well-known in the community where he lived and worked and had not attracted any adverse interest; and
   100. the Tribunal was satisfied that the applicant could safely return to his village and continue to express his views.

Proceedings in this Court

10. The grounds of the application commencing these proceedings were pleaded as follows:
    • (1) The Applicants [sic] submit that Tribunal erred in making findings of well-founded fear: (1) The RRT erred in adopting an unduly harsh approach to the well-founded fear.
    • (3) The Applicants [sic] submit that the Tribunal has misconstrued the test; has failed to carry out the “real chance” test as required by the law.
    • (4) Tribunal made the decision on the basis of the unreliable information. The Tribunal should made an investigation before making the decision, though the Tribunal has power, the Tribunal did not make it, which amounts to denial of procedural fairness.
11. At the hearing the applicant also made submissions which touched on his current situation including his mental health.

Tribunal’s approach was unduly harsh

12. The first allegation set out in the application was particularised in the second paragraph appearing under the heading “Grounds of the Application” in the following terms:
    • The Tribunal accepts that in 2002 he was threatened by a local leader of Lashkar-e-Taiba and in 2007, following the assassination of Ms Zill-e-Huma, he participated in protest activities expressing his views against the killing of Ms Huma and calling for equality for women. However, the Tribunal member did not account as a genuine chance of fear and made decision on presumption. The Tribunal Member made opinion before the hearing.
13. Together, the first allegation and the paragraph quoted above disclose that the applicant asserts that the Tribunal misapplied the test of what amounts to a well-founded fear of persecution, failed to undertake a proper review and, in any event, was guilty of bias by prejudgment.
14. In the early part of its decision where it discussed the law relevant to its review, the Tribunal demonstrated a correct understanding of the tests which it had to apply. In particular, para.16 of the Tribunal’s decision specifically discusses what amounts to a well-founded fear in the sense that the test requires an applicant not only to have a subjective fear but also that that fear be objectively a well-founded one: Chan v Minister for Immigration & Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379; Minister for Immigration & Ethnic Affairs v Liang [1996] HCA 6; (1996) 185 CLR 259; Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559. Of particular relevance to this proceeding is the following passage from that paragraph of the Tribunal’s decision:
    • A fear is well-founded where there is a real substantial basis for it but not if it is merely assumed or based on mere speculation. A “real chance” is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.
15. As was said in Minister for Immigration & Ethnic Affairs v Guo at 572:
    • ... no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution.
16. In this case, the Tribunal applied the test in the manner required. It identified what the applicant said his fear was and accepted that he did have a subjective fear of religious extremists in Pakistan. However, having made that finding the Tribunal went on to examine the objective circumstances relevant to the applicant’s fear. For the reasons it expressed, which are summarised above at [9], the Tribunal concluded that the applicant’s fear was not objectively well-founded. This conclusion was open to it on the evidence. Consequently, jurisdictional error is not demonstrated by this aspect of the first allegation made by the applicant.
17. The allegation that the Tribunal made its “decision on presumption” implies that it failed to give proper consideration to the issues and evidence before it. As the Full Court of the Federal Court said in Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630 at 640 [44]:
    • It is central to the exercise of the dispositive powers conferred by s.415 that the Tribunal has first conducted a review. That is to say it must have considered the application which is the subject of review in light of the information, evidence and arguments which are relevant to the application and which are provided to it or which it obtains for itself. So much is contemplated by ss.423, 424, 425 and 426 of the Act.
18. The Tribunal’s decision record discloses that the applicant’s allegation cannot be made out. That record demonstrates that the Tribunal considered the applicant’s allegations and the evidence and arguments he advanced in support of his claim to have a well-founded fear of persecution but found, on the facts, that he did not satisfy the test. That is to say, the Tribunal conducted a proper review and discharged its obligations under s.415 appropriately.
19. As to the allegation that the “Tribunal Member made opinion before the hearing”, the only evidence before the Court which touches on this allegation that the Tribunal had prejudged the review is the Tribunal’s decision record. As already noted, the Tribunal conducted a review which satisfied its statutory obligations. Particularly in connection with this allegation, nothing before the Court would support a conclusion that the Tribunal member embarked upon the review with a mind so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments might have been presented: Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 507.
20. For these reasons, the first ground pleaded in the application is not made out.

“Real chance” test

21. This allegation was particularised as follows:
    • The Tribunal did not accept any oral or written evidence with regard to the fear of persecution or harm.
22. As to the Tribunal’s application of the “real chance” test, for the reasons expressed above in connection with the first ground pleaded in the application, I find the Tribunal did not misconstrue or misapply that test.
23. Further, the factual assertion contained in the particulars to this allegation cannot be made out. It is apparent from the summary set out above at [8] that the Tribunal invited the applicant to a hearing where he gave evidence and presented arguments. The Tribunal’s decision record also discloses that the Tribunal had regard to the information supplied by the applicant to the Minister’s department in support of his application for a protection visa.

Decision based on unreliable information and without undertaking an investigation

24. Absent disqualifying circumstances such as bias or a lack of bona fides, which evidence the Tribunal finds relevant and persuasive is a matter for it and cannot be questioned in judicial review proceedings such as these. In particular, the accuracy of country information, including whether or not some information is to be preferred over other information is a matter for the Tribunal, not the Court: NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10; VQAB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 104.
25. Further, the Tribunal is under no obligation to make enquiries: Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12. Although the Tribunal does have a discretion to undertake enquiries by virtue of s.427, the exercise of that power is discretionary. Nothing has been put before the Court to suggest that any lack of enquiry on the Tribunal’s part manifests a miscarriage of that discretion.

The applicant’s current circumstances

26. At the hearing in this Court the applicant made oral submissions concerning his current circumstances, including the state of his mental health. From the bar table, the applicant stated that he had tried to commit suicide twice and that he had had mental health treatment. The applicant said that because of his situation and because his mental health was not good he could not decide what to do. However, at no point did the applicant say that he was unfit to present his case, nor did he request an adjournment on medical grounds. It should also be recorded that the applicant tendered no evidence related to his current situation and mental health. Further, his presentation at the hearing, even through the interpreter, was articulate, although it suffered from the difficulties which unrepresented litigants without legal training confront. In the circumstances, I do not conclude that the applicant was unable to, or disabled from, presenting his case to this Court.
27. The other matters raised by the applicant in his oral submissions were not relevant to the question of whether the Tribunal’s decision was affected by jurisdictional error.

Conclusion

28. Jurisdictional error on the part of the Tribunal has not been demonstrated.
29. Consequently, the application will be dismissed.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Cameron FM

Associate:

Date: 6 May 2009