MZXFU v Minister for Immigration
[2006] FMCA 700
•03 April 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZXFU v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 700 |
| MIGRATION – Refugee Review Tribunal – applicant a Pakistani citizen – reference on second last page of tribunal decision to India rather than Pakistan – reference a typographical error – application dismissed. |
| Federal Magistrates Court Rules 2001, r.44.12 |
| S14/2002 v Refugee Review Tribunal [2004] FCAFC 171 |
| Applicant: | MZXFU |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | MLG1707 of 2005 |
| Judgment of: | Riethmuller FM |
| Hearing date: | 03 April 2006 |
| Date of last submission: | 03 April 2006 |
| Delivered at: | Townsville (via video link to Melbourne) |
| Delivered on: | 03 April 2006 |
REPRESENTATION
| Counsel for the Applicant: | In person |
| Solicitor for the Respondent: | Ms Veschetti |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The application filed on 23 December 2005 is dismissed pursuant to rule 44.12 of the Federal Magistrates Court Rules 2001.
The Applicant do pay the Respondent’s costs, fixed in the sum of $1,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT TOWNSVILLE |
MLG1707 of 2005
| MZXFU |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
The applicant lodged an application for judicial review on
23 December 2005 and setting out his grounds of application as follows:
The Grounds of the Application are:
1. The decision of the Tribunal was made in breach of an imperative duty imposed on the Tribunal or an essential pre-condition to or an inviolable limitation or restraint upon its power and its jurisdiction necessary for the existence of the satisfaction required by s.65 to grant or refuse the application and its powers to conduct a review under s.414 of the Act. The Tribunal exceeded its jurisdiction and/or constructively failed to exercise jurisdiction in that it misunderstood and/or misconstrued an essential criterion or criteria for the grant of the visa which it was required to be satisfied in that
PARTICULARS
i) It reached a conclusion that the applicant would not be persecuted in India when the applicant claimed to fear persecution in Pakistan.
ii) Its conclusion that the applicant would be able to obtain state protection was not based on any evidence information. The only evidence from the applicant and it was to the contrary.
The applicant supported his application with an affidavit which is in the following terms:
1. I am an asylum seeker from Pakistan. I seek judicial review of the decision of the Refugee Review Tribunal of 8 December 2005 affirming the decision of the Department of Immigration and Multicultural and Indigenous Affairs that I am not a refugee.
2. I attach a copy of the Refugee Review Tribunal decision of
8 December which I received on 12 December 2005. I seek to rely on the grounds set out in the application. I am seeking legal advice in relation to the Tribunal's decision. I may seek to amend the application or add further material at a later date.
The decision shows on its face that it was handed down on 8 December 2005, having been signed on 29 November 2005. The matter has been before the Court on more than one previous occasion. The matter came before Registrar Agnew on 15 February 2006 at which time the Registrar ordered that the applicant file and serve further particulars of the application to show cause and any affidavit evidence on or before 8 March 2006.
No further documents were filed. Orders were made in Chambers on 16 March 2006 extending that date to 22 March 2006. The matter was listed before me today to consider pursuant to rule 44.12 of the Federal Magistrates Court Rules 2001.
Today, the applicant seeks an adjournment to give him more time to seek out alternative legal advice. He explained from the Bar table that he had obtained legal advice in the intervening period however, that advice was to the effect that he did not have a case and he sought an adjournment so that he could obtain alternative legal advice.
The applicant has now had at least since 23 December 2005 to seek out alternative legal advice. Given that he requires an interpreter, it seems to me unlikely that he completed the application himself without some advice or assistance, but in any event he states from the Bar table that he has had some legal advice in the intervening period.
In the circumstances, I am not inclined to view that a further delay in this matter is warranted.
The two grounds that are effectively stated in the application are as follows:
a)that the Tribunal referred to India rather than to Pakistan in the second last page of the decision; and
b)that the conclusions of the Tribunal with respect to the availability of protection from the state of Pakistan were not based upon any evidence or information before the Tribunal.
Ground 1
With respect to the first ground, I note that the Tribunal decision runs for 15 pages. There is extensive discussion of the nature of the applicant's case and the events that took place, or are alleged to have taken place, in Pakistan. The Tribunal is clearly referring to Pakistan throughout the whole of its reasons.
The reference to India appears in the last sentence before the conclusion in the following context:
In the Tribunal's view there is no plausible evidence before it that the applicant has suffered persecution in his country because of his religion or a religion imputed to him or for any other convention or reason. Nor in the Tribunal's view does the evidence establish that there is a real chance that the applicant will suffer persecution for a convention or reason either now or in the reasonably foreseeable future if he returns to his country.
Having regard to the above the Tribunal is not satisfied on the evidence presently before it that the applicant has a well founded fear of persecution in India within the meaning of the contravention.
In the preceding pages the Tribunal member refers to Pakistan on well over a dozen occasions by reference to the word "Pakistan". Nowhere in the preceding pages does there appear a reference to India. It appears to me to be clear that, in the absence of any other indicators that the Tribunal was considering anything other than the applicant's case with respect to Pakistan, that this is no more than a typographical error. The Tribunal decision has no other indictors that the Tribunal member may have been considering India.
I have regard to the decision of the Federal Court Full Court in S14/2002 v Refugee Review Tribunal [2004] FCAFC 171. The Court considered a typographical error stating as follows:
27 In his second ground of appeal, the appellant challenged the course taken by his Honour in reading the word "not" into paragraph numbered [32] above. Part of that challenge was to some of his Honour’s reasoning, based on the decision in Long v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 218 at [32] that the content of the Tribunal’s reasons was a question of fact, thereby leaving it open to him to infer as a matter of fact that the Tribunal had omitted the word "not".
28 I would not take any issue with his Honour’s description of what was held in Long on that point. But the question in this matter is one of construction of the Tribunal’s reasons. I would adopt the same approach as that taken by his Honour i.e. to have regard to the reasons as a whole. It is also important, in my opinion, to have regard to the context of the particular part of the reasons in which this sentence occurred.
29 I acknowledge that to insert the word "not" into a sentence is a major, indeed radical, step as a matter of construction.
30 However, in paragraph numbered 32 the Tribunal first dismisses the incident at the boarding house as one which did not indicate that the appellant was at risk [I interpolate here to express the view that the reference to "a risk" was another typographical error which should have read, as his Honour found, "at risk"]. It would be, to say the least, odd to follow such a rejection with the last sentence, as typed, in paragraph numbered 32.
31 Next, the wording of that sentence is strange with its reference to a single incident and emphasis by the use of the words "does serve".
32 More importantly, the sentence, as typed, is totally inconsistent with the Tribunal’s conclusions expressed in paragraphs 36, 37 and 38 of its reasoning.
33Mr McInerney took us to the familiar line of authorities including Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 concerning the manner in which the Court should approach the Tribunal’s reasons.
34 However, in my view, it is quite clear from the matters to which I have referred above that the relevant sentence suffered from a typographical error by omitting the word "not". The situation is analogous, in my opinion, to that which occurred in Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297.
35 For those reasons I would reject ground 2.
In the context of this case, on the basis of the material before me I am not satisfied that the applicant has shown a ground that demonstrates an arguable case. Therefore, I find that this is not a ground upon which an order to show cause should be based.
Ground 2
The second ground relates to the applicant's claim with respect to state protection. The conclusions of fact reached by the Tribunal are as follows:
Further the tribunal does not consider that it is consistent with the applicant’s claims that he was persecuted by religious extremists in Pakistan and that his house was attached and his wife stabbed by these extremists in March 2004, that his wife and children and his other family members have remained living in Pakistan without incident. The evidence is that his wife and children live in the area of the applicant’s house and restaurant and that his children attend school there. The applicant has said that his wife is able to do this because she is not related to his family, that he is the main target and that he has not sold the property. In the tribunal’s view while this explanation is consistent with the conclusion that the applicant had a property dispute with his adoptive uncle that lead to violence between himself and the uncle, it is not consistent with his evidence that his wife was stabbed by extremists because they had been told by his adoptive uncle that the applicant was Ahmadi. The tribunal does not accept as true the applicant’s evidence that his wife stays at home whenever possible to avoid harm; he said earlier in the hearing that she came to see him on four occasions when he was moving around. The tribunal does not accept the evidence offered later in the hearing by the applicant that she could do this because she wore the veil.
The tribunal does not accept as true that the applicant’s adoptive uncle incited religious extremists against the applicant by telling them that he/his brother was/is Ahmadi. It does not accept that the applicant and/or his family are or will be in danger from religious extremists in Pakistan because the applicant’s uncle has, or will in the future, make allegations to those extremists about the applicant’s religion. It follows from that the Tribunal does not accept that the applicant cannot get protection in Pakistan from police/authorities against religious extremists as the applicant claims. Even if the property dispute is not resolved at least temporarily, there is no plausible evidence before the Tribunal that the applicant cannot get protection in Pakistan from harm feared from the uncle, for a Convention reason.
The Tribunal does not accept the applicant’s claim to the extent that he is making the claim, the he left his country and cannot return there because he fears harm because his brother and his uncles and their families are Ahmadi. The evidence before the Tribunal is not consistent with that claim; the applicant agreed that he lived and worked peacefully without incident in his country for a number of years after his brother converted to Ahmadi and during the time his uncle and their families were living in Australia.
It is clear that the Tribunal rejected the applicant's claims of persecution. The Tribunal did not conclude that the applicant was in danger. In substance the Tribunal did not conclude that there was anything that the applicant needed to be protected from. In these circumstances the decision, to the extent that it deals with the availability of state protection, does not make any difference to the ultimate outcome of the Tribunal's decision.
In the circumstances I do not see that this can found an application for judicial review. I therefore dismiss the application.
In this case the applicant has been unsuccessful. The applicant opposes a costs order on the basis that he is impecunious. This of itself is not a proper basis for refusing a costs order. The applicant has put the respondents to expense. The applicant has not succeeded. I am not satisfied that this is a case where a costs order should not follow the event. In the circumstances, I therefore order the applicant to pay the respondent's costs.
Having regard to the nature of the application and that there has been at least one previous appearance and having regard to the Federal Magistrates Court scale I proposing fixing costs at $1,500. I therefore order that the applicant pay the respondent's costs fixed at $1,500.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Riethmuller FM
Associate: Melissa Gangemi
Date: 6 June 2006
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