SZONG v Minister for Immigration & Anor [2011] FMCA 87 (16 February 2011)

Federal Magistrates Court of Australia

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SZONG v Minister for Immigration & Anor [2011] FMCA 87 (16 February 2011)

Last Updated: 1 March 2011

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZONG v MINISTER FOR IMMIGRATION & ANOR

[2011] FMCA 87

MIGRATION – RRT decision – Pakistani applicant fearing persecution for political opinions and activities – disbelieved by Tribunal – no error in discounting of corroborative material – conclusion on credibility not manifestly unreasonable nor based on illogical foundation – no evidence of bias – no jurisdictional error – application dismissed.

Legal Aid Commission Act 1979 (NSW), s.57 Migration Act 1958 (Cth), s.476

Minister for Immigration & Citizenship v SZJSS [2010] HCA 48 Minister for Immigration & Citizenship v SZNPG [2010] FCAFC 51 Minister for Immigration & Citizenship v SZNSP [2010] FCAFC 50 Re RRT & Anor; Ex Parte H [2001] HCA 28; (2001) 179 ALR 425 Wilson v Alexander [2003] FCAFC 272; (2003) 135 FCR 273

Applicant:

SZONG

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1530 of 2010

Judgment of:

Smith FM

Hearing date:

16 February 2011

Delivered at:

Sydney

Delivered on:

16 February 2011

REPRESENTATION

Counsel for the Applicant:

In Person

Counsel for the Respondents:

Mr M Alderton

Solicitors for the Respondents:

Sparke Helmore

ORDERS

(1) The application is dismissed.
(2) The applicant must pay the first respondent’s costs in the sum of $5,700.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 1530 of 2010

SZONG

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The applicant arrived in Australia in August 2009. On 27 August 2009, he lodged an application for a protection visa, apparently without assistance. In his application, he referred to running his own business in Pakistan and working previously as a plumber. He said that “he used to take part in social activities” in his city. After Imran Khan formed a political party in 1996 which was known as the PTI, he became the General Secretary of a branch of the party in the local district.
2. The applicant said that his party supported General Musharraf when he came to power, and the applicant publically supported the General in his opposition to terrorism and the Taliban. He said “because of this local Taliban became against me and tried to kill me. Not only that, they also sent me messages that they would kidnap my children”. He said that this did not stop his support of the General, but after the General lost office “the present government look helpless and cannot protect its own Minister and important personalities. How can they protect me?” He said:
   • Due to all these reasons, when I felt that my life cannot being protected in this country, then I had to leave the country, as I received the latest threat to kill me, saying that there is no Musharraf now who can protect me.”

He claimed that the government were “helpless and hopeless” in providing protection.

3. In a later letter to the Department, the applicant referred to having attended a conference about journalism in the United Kingdom, and having “been working as journalist in Pakistan”. At an interview with a delegate on 23 November 2009, the applicant said that “his activity as a local correspondent-journalist was not related to his political role and is not relevant to his refugee claims”. However, he also said that: “after 2008 there was a problem because of his politics and his membership of the Press Club”.
4. The delegate made a decision on 25 November 2009 refusing the visa application. The delegate noted documentary evidence submitted by the applicant, including three photographs showing him with Imran Khan and the former president. The documents included a print-out from a website of the PTI party, which listed a person with three of the applicant’s personal names, but not his family name, as the District General of the local district of the party.
5. The delegate accepted that the applicant was General Secretary of the local branch of the PTI party. However, he thought that the applicant’s answers to questions about the party did not demonstrate an expected “in-depth knowledge”, and thought that he had not substantiated that he had “any significant political profile to be of such adverse interest to the Taliban as he claimed”.
6. The delegate found his evidence about threats to have been “vague, unsubstantiated and speculative”. The delegate said that she did not find him to be “a credible witness in this regard and do not accept his claims that he was threatened as claimed”. The delegate noted that the applicant had not referred to working as a journalist in his visa application, and noted his disclaimer that it related to his refugee claims.
7. The delegate was prepared to accept only that the applicant had a generalised fear about the situation in Pakistan, which did not receive protection under the Refugees Convention. She found that his claimed fear of persecution for a Convention reason was not well founded.
8. The applicant appealed to the Tribunal, where he continued to represent himself. He presented a statement to the Tribunal answering the points made by the delegate. In this, he said that his fears of persecution related to his being “an activist of modernisation to build a tolerant society”. He suggested that this was known in his city, and had attracted threats. The applicant also claimed that he had “tried to report to the police, but my application had not been entertained”, but he said he could not prove this.
9. The applicant attended a hearing of the Tribunal on 15 February 2010. He presented various cards to prove journalist associations, and copies of some press clippings, one of which referred to a person with three of his names as the General Secretary of the PTI party in his city and to other matters. He also submitted a number of letters purporting to corroborate his membership of the District Press Club and of his work as a journalist and position as General Secretary. A transcript of this hearing and of a second hearing held on 12 April 2010 is not in evidence before me, and I must rely upon the Tribunal’s summary of the evidence it received.
10. At the first hearing, the Tribunal took a history from the applicant about his work in journalism, his activities in the PTI party, and his reasons for coming to Australia. The applicant gave an account, for the first time, of having been threatened in a particular incident at a roundabout by three people, whom he could identify, and who threatened to kill him. This happened in March or April 2009. The applicant said that he had notified the police about the threat, but they “never took any interest in the complaint”. He also claimed to have taken some members of the Press Club with him to the District Police Officer to inform him that his life was in danger, and that the “District Police officer said that he would take some action”. The applicant said that the Taliban were targeting him and not other members of the PTI in his district: “because he was a social worker and a journalist and he was quite famous. During the regime of Pervez he reported the Taliban and their actions”.
11. The Tribunal put a number of concerns to the applicant, which ultimately formed part of its reasoning.
12. At the second hearing, the Tribunal went through each of the documents which the applicant presented as corroborative. The Tribunal put to him various concerns about the documents, and generally about the reliability of documentation presented in support of immigration applications originating in Pakistan. The Tribunal again went through other concerns with the applicant about his evidence.
13. The Tribunal made a decision on 12 June 2010, affirming the decision of the delegate. In its statement of reasons, the Tribunal identified all the evidence given by the applicant orally and in writing, and his corroborative documents. It referred to background information about political developments in Pakistan, about its law enforcement agencies, and about the “problem of document fraud” in relation to applicants for immigration from Pakistan.
14. In its findings and reasons the Tribunal accurately, in my opinion, identified the applicant’s refugee claims:
    • The applicant stated that he was a member of the PTI political party, the party led by Imran Khan. In his PVA the applicant said that as an active member of the PTI political party he supported Imran Khan openly in his city and because of this local Taliban tried to kill him sending messages that they would kidnap his children. He supported Pervez Musharraf [military ruler] even when his party leaders warned him that their policy had changed toward Musharraf's policies but he took a stand in the PTI party and told them that he would support Musharraf who was trying to clean society from all fanatics ie the Taliban. He survived in Pakistan whilst Musharaf was in power as he was protected by the government but the present government look helpless and cannot protect its own Minister and important personalities let alone protecting the applicant. The terrorist group Lashkar-e-Jhanghavi is very strong in his city and they are the main terrorist who are after him and want to take revenge as he supported Musharraf in his regime.
    • The applicant further claimed that he had a high profile in his district as the Secretary-General of the PTI, social worker and a reporter/journalist. During the reign of Pervez Musharraf he was a supporter of his policies. He claims that he was targeted and harmed by the Taliban, not because of his membership of the PTI, but against him personally because of his high profile as a journalist, his work as a social worker and his position as Secretary General of the (his city) branch of the PTI. He claims that he received threats from the Taliban on his mobile phone and once when he was at a roundabout he was threatened face to face. He also claims that as he had openly supported Pervez Musharraf, (the military ruler until 2008) at one time against the wishes of his party, and because of this the local Taliban were against him and they tried to kill him. They even sent him messages that they would kidnap his children.
15. The Tribunal accepted that there was “widespread corruption in the police force and that there had been attacks in Pakistan linked to Al-Qaeda and the Taliban in recent years”. However, the Tribunal said:
    • I do not accept that the applicant is a witness of truth. I am satisfied that the applicant has created his claims of harm in Pakistan in order to obtain the visa sought.
16. The Tribunal then made a long series of points explaining this conclusion. Some of them might appear unpersuasive when looked at in isolation, but others had rational substance and an evidentiary foundation in the material which was before the Tribunal. These included concerns that the significant event at the roundabout had not been mentioned by the applicant in the course of his protection visa application to the Department, that the applicant could not explain how he recognised the people at the roundabout as Taliban, and that the applicant had not explained why he was ready to leave his children and wife in the family home if he had received threats of kidnapping.
17. The Tribunal did not accept “as plausible” that, if the Taliban were targeting a high profile district level person in the PTI “some mention would (not) have been made by the PTI”, in particular on their “very vocal” internet site and in other sources.
18. The Tribunal discussed whether it accepted that the applicant had been Secretary General of the PTI in his locality. It noted some differences in references to the names of that official in the document submitted by the applicant, and it also thought that there was one aspect of his knowledge about the policies of the party which was defective. The Tribunal also had a concern that the applicant had not joined the local chapter of the party in Australia. For these reasons it said: “I am not satisfied that the applicant is the same person as the General Secretary of the PTI.”
19. The Tribunal had concerns about the refocusing of the applicant’s case, which changed so as to emphasise his claims to have been a reporter/journalist in Pakistan. It referred to problems about his evidence as to how the Taliban were aware of those activities, as a reason for targeting him. The Tribunal thought one of his explanations in this respect was “a late invention made to bolster his claims”.
20. The Tribunal addressed in detail each of the documents submitted by the applicant, indicating reasons for placing “no weight” on each of them as corroboration. In relation to some documents, which did appear to provide direct corroboration, the Tribunal referred to “the inconsistencies outlined above and the prevalence of document fraud” as the reason for not giving those documents weight.
21. In view of its general adverse conclusions about the applicant as a witness of truth, the Tribunal was not satisfied as to any of the claimed history of the applicant upon which his refugee claims were based. It was not satisfied that there was a real chance that he would suffer serious harm, amounting to persecution for a Convention reason if he returned to Pakistan, and did not accept that he was a person to whom Australia had protection obligations under the Refugees Convention.
22. The applicant has applied to the Court to set aside the Tribunal’s decision and to remit the matter for further consideration. I have power to make these orders only if I am satisfied that the Tribunal’s decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant should be believed, nor whether he qualifies for a protection visa or any other permission to stay in Australia.
23. The application in this Court became protracted. He was referred for free legal advice, and received it from a barrister who assisted him to prepare an amended application. However, the applicant then belatedly applied for legal aid from the New South Wales Legal Aid Commission, and the Court was forced to adjourn the appointed hearing, by reason of the effect of s.57 of the Legal Aid Commission Act 1979 (NSW), as interpreted by the Federal Court in Wilson v Alexander [2003] FCAFC 272; (2003) 135 FCR 273. The applicant’s appeal to a Legal Aid Review Committee was unsuccessful, and today’s adjourned hearing proceeded without the applicant being represented.
24. The applicant relies upon contentions found in his original application, in his amended application, and in a written submission with further documents which was submitted at today’s hearing.
25. His original application presents an argument in an attachment. In my opinion, essentially this argues that the Tribunal arrived at the wrong decision. In particular, it argues that the Tribunal failed to appreciate that the applicant incurred persecution not only as an official of the PTI, and that he made claims as:
    • “a journalist as well, but my duties were to report the daily important events/incidents/police and hospital news and criminal activities. So that was the point when these terrorist groups become against me because I exposed them in the public through the news. That is why they had gone against me and threatened me over the phone”

In effect, the applicant’s argument asked the Court to make a fresh decision about his claims, those claims appearing to be refocused again. However, this is not its function in an application under s.476 of the Migration Act.

26. I was unable to identify any allegation of jurisdictional error in the submission attached to the original application.
27. The amended application has two grounds. The first ground is:
    • The Refugee Review Tribunal failed to attain, or failed to exercise jurisdiction, by reason that the RRT’s hearing and decision was tainted by apprehended bias.
28. Two particulars are given. The first particular is:
    • The RRT member dismissed probative evidence on superficial and flimsy grounds”.

There is then a critique of the Tribunal’s reasoning, in particular its reasons for not treating as conclusively corroborative, the various documents submitted by the applicant.

29. The second particular is:
    • The RRT ignored evidence and failed to consider the totality of the evidence.

There is then a list of the evidence that is alleged to have been ignored, referring to evidence given by the applicant himself to the Department and the Tribunal.

30. However, in my opinion, neither of these particulars points to any reason of substance for drawing the conclusion that the Tribunal arrived at its conclusions with a mind closed against considering the applicant’s claims and evidence on its merits.
31. As has been recently repeated in the Federal Court “it is a rare case in which a court will find that a decision-maker has breached the natural justice hearing rule by exhibiting bias based simply upon the decision-maker’s reasons” (see Minister for Immigration & Citizenship v SZNPG [2010] FCAFC 51 at [18] & [25] – [26]). The present Tribunal’s reasons provide no basis for finding it to be an exception to this. Even if defects in the weighing of evidence were apparent in the statement of reasons, this does not show that the Tribunal did not keep an open mind before it arrived at final conclusions.
32. There is no evidence of bias by way of prejudgment pointed to by the applicant in this case, and I am unable to identify any evidence supporting a contention of apprehended bias under the principles identified by the High Court in Re RRT & Anor; Ex Parte H [2001] HCA 28; (2001) 179 ALR 425.
33. Moreover, the criticisms of the Tribunal’s reasoning are unfounded, in my opinion. I would not characterise the Tribunal’s reasoning as being “superficial and flimsy”. In my opinion, its reasoning was, essentially, rational reasoning based on an assessment of probative evidence. Nor did the Tribunal “ignore” any of the particulars of evidence given in the amended application. Patently, it was fully aware of the particularised evidence, and took it into account. Essentially, the criticism is no more than that the Tribunal did not weigh that evidence in the manner that the applicant had hoped.
34. For that reason, ground 2 of the amended application also fails. It contends:
    • Further or in the alternative, the RRT failed to attain, or failed to exercise jurisdiction, by reason that the RRT failed to consider the applicant’s claim that he would be persecuted by the Taliban in Pakistan because of his past opposition to it, demonstrated through his political, journalist and social activities.
    • Particulars:
      • The applicant refers to the particulars in 1. above.
35. The claim which is alleged not to have been addressed by the Tribunal was, in my opinion, clearly addressed by it. The particulars that are referred to, being the particulars referred to “in 1. above” do not support the contended jurisdictional error.
36. I accept the submission of the Minister’s representative that no jurisdictional error can be identified in the Tribunal’s treatment of the corroborative evidence submitted by the applicant, upon the same reasoning as was followed by the High Court in Minister for Immigration & Citizenship v SZJSS [2010] HCA 48 at [33] – [36] (see also Minister for Immigration & Citizenship v SZNSP [2010] FCAFC 50). The Tribunal did not totally disregard that evidence, but considered what weight it should be given in the light of its assessment of the other evidence and its inherent problems.
37. I therefore can find no substance in either of the grounds in the amended application.
38. In his written and oral submissions today the applicant contended that the Tribunal had failed to appreciate his explanations for some of the discrepancies in the documents in references to some, but not all, of his four names. The applicant submitted that “in Pakistan we call only name which normally given by our parents and not the family name or surname”.
39. I certainly accept that a Tribunal needs to be alert to the differing emphasis given in different cultures to the use of a family name or surname. Even in Australia, it is not infrequent that members of the community from non-Anglo cultures do not use a family name, or use it differently in written documents. However, I am not satisfied that the present Tribunal member assessed the applicant’s documents based on a misapprehension as to the use of family names in Pakistan. The point made by the applicant does not minimise the fact that there were inconsistencies in some of the documents’ references to names, and that it was appropriate for the Tribunal to consider whether this cast doubt whether they referred to the applicant or to another person.
40. I am not persuaded that any of the points made by the Tribunal were based upon any mistake of fact, or a lack of appreciation of the point now made by the applicant. Moreover, even if such mistakes did occur, they would not, in my opinion, amount to jurisdictional error vitiating the decision of the Tribunal, in a situation where its adverse credibility finding was supported by other substantial reasons.
41. The applicant submitted a number of additional documents, which had not been shown to the Tribunal, to confirm his identity as the person with the four names indicated in the visa application. I do not understand the Tribunal to have doubted that. To the extent that the documents were submitted to prove activities engaged in by the applicant, or associations he had in Pakistan, they are inadmissible to show jurisdictional error by the Tribunal, since they only amount to fresh evidence going to the merits of its decision.
42. Taking into account all the points made by the applicant, I am not persuaded that the Tribunal’s decision was affected by any jurisdictional error. I must, therefore, dismiss the application.

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Smith FM

Date: 28 February 2011