BZAC of 2004 v Refugee Review Tribunal
[2005] FMCA 43
•20 January 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BZAC of 2004 v REFUGEE REVIEW TRIBUNAL & ANOR | [2005] FMCA 43 |
| MIGRATION – Review of RRT decision – whether the Applicant was denied natural justice or procedural fairness by the Tribunal’s failure to provide to him or explain the country information – whether the Tribunal gave the Applicant a reasonable opportunity to respond to country information – no jurisdictional error made out, application dismissed. |
MIAE v Liang (1996) 185 CLR 259
Abebe v The Commonwealth (1999) 197 CLR 510
Muin v RRT (2002) 190 ALR 601
MIMIA; Ex Parte Durairajasingham (2000) 168 ALR 407
| Applicant: | BZAC of 2004 |
| First Respondent: | REFUGEE REVIEW TRIBUNAL |
| Second Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | BRG552 of 2004 |
| Delivered on: | 20 January 2005 |
| Delivered at: | Brisbane |
| Hearing date: | 18 January 2005 |
| Judgment of: | Baumann FM |
REPRESENTATION
| Solicitors for the Applicant: | Sharma Lawyers |
| Counsel for the First and Second Respondents: | Mr McLeod |
| Solicitors for the First and Second Respondents: | Clayton Utz |
ORDERS
That the application filed 24 September 2004 be dismissed.
That the Applicant pay the Second Respondent’s costs in an amount to be fixed by the Court.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRG552 of 2004
| BZAC of 2004 |
Applicant
And
| REFUGEE REVIEW TRIBUNAL |
First Respondent
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The Applicant is a citizen of Pakistan who entered Australia on a temporary business visa on 19 November 2003.
After an application lodged by the Applicant for a protection visa on
8 January 2004 was refused by the minister on 20 February 2004, he sought review by the Refugee Review Tribunal (the ‘RRT’). The Review was heard on 25 June 2004 and reasons delivered on 19 August 2004 (“the decision”), affirmed the decision of the Minister’s delegate.
The matter which proceeded to trial before me on 17 January 2005, is an application for review of the RRT decision. The Applicant has throughout this process been legally represented.
Grounds
The Amended Application identifies the grounds for appeal as follows:-
“1.In the Tribunal Decision there were certain materials referred to that were not delivered to me or explained to me prior to the decision being made. These materials were:
(a) US State Department, Country Reports on Human Rights and Practices for 1997, in relation to the Republic of Korea. See page 10 of its decision;
(b) DFAT, Country Information Request – Pakistan, dated 3 March 1992, CX3833;
(c) UK Home Office, Immigration and Nationality Directorate, Country Information;
(d) Policy Unit, Pakistan Country Report, October 2003;
(e) DFAT cable IS44158, dated 22 March 1994 CX 3671
2.The materials referred to in paragraph 1 above were generalised, not contemporaneous, gave an imbalanced view of the true state of affairs in Pakistan and were not directly relevant to the issues raised in the application, nor did they have any direct bearing on the proper considerations for a Convention ground. Had the Applicant been aware of these materials before the Tribunal he would have been able to source and present material that would have thrown a more true light on his situation and the state of affairs in Pakistan from the viewpoint of a member of an oppressed race and not from the perspective of a foreign journalist as these materials were.
3.The Tribunal ignored the relevant material or did not give it proper weight and thus the Applicant was denied natural justice or procedural fairness.”
Although during oral submissions by Mr Sharma, solicitor for the Applicant, he indicated that the member had a “closed mind” in respect of the Application, no formal submission was made or orally persisted with by the Applicant on the basis of bias.
Background
I adopt as an accurate and succinct history of the background facts paragraphs 5 to 7 of the Respondent’s submissions as follows:-
“5.The Applicant is a citizen of Pakistan who arrived in Australia in late 2003 as a temporary business entrant. The application for a protection visa was supported by a statement from the Applicant dated 6 January 2004.
6.The Applicant contended that if he returned to Pakistan he would be:
“…persecuted for my religious beliefs and denied basic rights to live and work in Pakistan.”
7.A number of matters were outlined in the Applicant’s statement to support his claim. The basis of the Applicant’s Convention claim centred around the following:
a) The Applicant was born to a Sunni family. In the late 1980’s he began taking part in Shi’a religious activities. It is said that his family increasingly disliked him because of his involvement with such activities. In 1992 the Applicant married into a family who followed a strict Shi’a faith. It is around this time that “[his] problems increased many times”. His family attempted to bring him back to the Sunni faith, but he refused.
b) The Applicant was threatened by Sunni people; he was shouted at when home and ugly words were written on the walls of his house. On five or six different occasions he was arrested by police, taken to the police station, locked up – sometimes for several hours or two days. At no time were charges brought against him. The reason that he was taken into custody was allegedly due to the fact that he had spoken out against the Sunni faith. The Applicant felt that the police “wanted to kill me in custody but they could not because each time I was arrested, people knew of my arrest.”
c) At the end of 1997, he left Pakistan without his family and worked in South Korea for five years. The Applicant continued to practice Shi’a religions. His wife subsequently advised him that the incidences of hatred towards the family had lessened and the Applicant decided to return to Pakistan.
d) Upon returning to Pakistan the Applicant took part in a Shi’a religious festival that he helped organise. He subsequently received threats and on three or four occasions in July/August 2003 he was attacked. He claimed that his attackers were Sunni fundamentalists. In August 2003, he was arrested twice by the police for allegedly insulting the Sunni religion. He was further assaulted in August and required hospitalisation for about three days. The Applicant attempted to file a complaint, however, the police refused to take any action. He was subsequently arrested due to his insistence that action be taken. It is alleged that police told him that it would be in his best interest to stop practicing Shi’a religion.
e) The Applicant was further threatened and assaulted in September 2003. He sought treatment at hospital. The Applicant again tried to register the incident with the police but was unsuccessful.
f) As a consequence of the matters set out above, the Applicant decided to leave Pakistan and seek refuge in Australia.”
Hearing before the RRT
I had the benefit of a transcript of the proceedings before the RRT. The well constructed Reasons for Decision, whilst correctly referring to the relevant law and test to be applied under the Migration Act 1958, and the Refugees Convention and Protocol, made some telling findings of fact.
Before turning to these issues it is perhaps trite law to observe that this Court cannot review the merits of the Tribunal decision (MIAE v Liang (1996) 185 CLR 259) and there is no error of law, let alone a jurisdictional error in the Tribunal making a wrong finding of fact (Abebe v The Commonwealth (1999) 197 CLR 510). Issues of credibility have been described as “the function of the primary decision-maker par excellence” (see McHugh J in MIMIA; Ex Parte Durairajasingham (2000) 168 ALR 407).
The critical findings made by the learned member were that he did not accept that:-
a)The Applicant was telling the truth about persecution he claims to have suffered in Pakistan;
b)The documents he produced in support of his claim were genuine;
c)The Applicant’s actions were consistent with a person fearing persecution;
d)The Applicant’s actions were those of a person “who was really very scared”;
e)“Either before or after he went to South Korea, the Applicant was arrested on a number of occasions by the police, nor charged with offences as suggested by the ‘police report’ he produced, nor that he was charged with offences as suggested by the ‘police report’ he produced, nor that he was attacked on a number of occasions by Sunni fundamentalists or members of the Sipah-i-Sahaba Pakistan, nor that shots were fired at his house”;
f)The Applicant’s claims he was threatened by Sunni people because of his conversion to the Shi’a sect, nor that his problems increased after marriage;
g)The police and the government in Pakistan openly discriminate against Shi’a Muslims, nor that the police and the government offer no protection to Shi’a Muslims;
h)If a Shi’a Muslim goes to the police station to report something they will not listen to him but they will take the case of a Sunni Muslim;
i)Those responsible for sectarian attacks on Shi’a Muslims target converts from the Sunni sect rather than Shi’a Muslims in general;
j)There is a real chance the Applicant will be affected by the sectarian violence if he returns to Pakistan, having regard to the relatively small number of people affected by sectarian violence compared to the very large number of Shi’a Muslims in Pakistan.
As a result of these findings, the RRT was “not satisfied that the Applicant has a well-founded fear of being persecuted for a convention reason if he returns to Pakistan”, and accordingly Australia does not hold protection obligations in respect of the Applicant.
Although Mr Sharma tried to assert some of the findings were against the weight of the evidence offered by the Applicant, he really was venturing into the impermissable territory of arguing the merits of the decision.
Suffice it to say, that the reasons, in respect of each material finding cogently explained the basis of such findings. They were all matters for the RRT and were, in my view, clearly open to the Tribunal.
Failure to provide ‘Country Information’
The major submission relied upon by the Applicant was an assertion that:-
a)The Applicant was denied natural justice because “certain materials referred to in the decision… were not delivered to or explained to the Applicant prior to the decision being made”; and
b)Had the Applicant been aware of these materials before the Tribunal he would have been able to “source and present material that would have thrown a more true light on his situation and the state of affairs in Pakistan from the viewpoint of a member of an oppressed race and not from the perspective of a foreign journalist as these materials were.”
As canvassed during oral submissions, the flaw in these assertions are exposed as:-
a)All the country information was put to the Applicant (or at least such parts as the member had identified as contrary to the position taken by the Applicant) and he responded to such evidence.
b)The Applicant did call a person who was relied upon, as an alleged member of the same class of oppressed person as the Applicant. The witness had no direct evidence to corroborate the Applicant’s versions of harassment, nor had he lived in Pakistan since 1992.
c)Most importantly, the transcript reveals (and Mr Sharna conceded) that the advocate Mr Gupta’s request to make further submissions after 25 June 2004 was granted by the member. The member, in a patently obvious exercise of generous discretion allowed until 2 July 2004 for the Applicant to make any further submissions. It was clear that, even though reasons were not delivered until 19 August 2004, no submissions had been received. No evidence was offered to the Court for a failure to utilise this additional opportunity to reply to any information which the member was clearly considering before making a final decision.
It is clear that the Tribunal discharged its duty to the Applicant to proceed fairly. No issue as identified in Muin v RRT (2002) 190 ALR 601, arises on the facts of this case.
No further investigatory role was required to be undertaken by the RRT.
Conclusion
For the reasons set out above, I have formed the view that no jurisdictional error has been established. As a result, the decision is a privative clause decision, and I am bound to dismiss the application as a matter of law.
Costs should follow the event. I will order that the Applicant pay the Second Respondent’s costs of the proceedings to be determined by me.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Baumann FM
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