MZYBB v Minister for Immigration
[2008] FMCA 1462
•12 September 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZYBB v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1462 |
| MIGRATION – Refugee Review Tribunal – judicial review – application to reinstate application – no matter of principle. |
| Migration Act 1958 (Cth), s.424A |
| NALM v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 17 NAKX v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1559 SZKLB v Minister for Immigration and Citizenship [2007] FMCA 1893 SZDPB v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 110 |
| Applicant: | MZYBB |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 762 of 2008 |
| Judgment of: | Riethmuller FM |
| Hearing date: | 12 September 2008 |
| Date of Last Submission: | 12 September 2008 |
| Delivered at: | Melbourne |
| Delivered on: | 12 September 2008 |
REPRESENTATION
| Counsel for the Applicant: | The applicant appearing in person |
| Counsel for the Respondents: | Ms S. Koya |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
That the application to reinstate the matter is refused and the application is formally dismissed.
That the applicant pay the respondent's costs, fixed at $700.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 762 of 2008
| MZYBB |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(As revised from Transcript)
This is an application to reinstate proceedings brought by the applicant against the Minister for Immigration and Citizenship for the judicial review of a decision of the Refugee Review Tribunal.
The applicant failed to attend at a directions hearing before the registrar and the matter was dismissed. The applicant had forwarded to the registry a medical certificate saying that he was not fit for work but that certificate does not explain why he was unable to come to court and nor does his affidavit explain in any detail why he was unable to come to court: see generally NALM v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 17; NAKX v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1559 and SZKLB v Minister for Immigration and Citizenship [2007] FMCA 1893.
I see no error in the registrar dismissing the application on the material that was before the registrar at the time.
In reviewing the decision of the registrar, however, I do not proceed on the basis that it is an appeal proper but rather that I consider whether or not the decision should have been made on the basis of the material that is now before me; that is, considering the matter afresh.
On the material before me at present, had the applicant not attended I would have dismissed the application. However, a fundamentally different fact before me today is that the applicant is here pursuing his application.
I am therefore in a position where I ought to consider reinstating the application if the applicant establishes that he has an arguable case on the material that he has filed. If he does not have an arguable case, there is no purpose to be served in reinstating the application.
The application concerns a decision of the tribunal that was notified to the applicant on 22 May at a handing down process. The decision runs for 40 pages and contains 161 paragraphs traversing the details of the applicant's claims and the country information. The applicant made a large number of claims as the basis for his claim for refugee status, which are outlined in considerable detail in the first 25 pages of the decision.
I note that the applicant did not attend his tribunal hearings on time but was nonetheless given a hearing and that during the course of the tribunal process, in accordance with section 424A of the Migration Act 1958, a number of documents and issues relevant to the tribunal's decision‑maker process were formally put to the applicant to allow him to consider them. The tribunal then traversed in considerable detail the relevant country information relating to Pakistan.
The tribunal's findings run from paragraphs 86 to 161. Importantly, the tribunal consistently found that they did not accept most of what the applicant put. For example, when considering the applicant's claim with respect to specific incidences of past persecution, the tribunal said:
109. Similarly, whilst there is medical evidence before the Tribunal that the applicant sustained a scalp wound in June 2006 for which he was hospitalised, the Tribunal does not accept that the evidence before it indicates the motive for the alleged attack upon the applicant at this time was for a Convention-related ground. In reaching this conclusion the Tribunal is mindful of the fact that it would not be reasonable for the Tribunal to require an applicant to provide documentary evidence that verifies each and every aspect of his claims for a Protection visa. As a result, the Tribunal has also taken into to the applicant’s submissions in respect of these matters. However, having regard to the range and number of inconsistencies in the evidence overall, including those set out elsewhere in the Tribunal’s reasons, the Tribunal does not find the explanations offered by the applicant to be satisfactory. As a result, the Tribunal does not accept the applicant’s claim that the June 2006 incident caused him to fear serious harm such that a large bribe had to be paid in order to secure his safety in Brunei, away from his alleged persecutors in Pakistan. As a result, the Tribunal also does not accept that the applicant was the subject of a politically motivated attack in August 2005.
110. In any event, event if the Tribunal accepts that the applicant was subjected to politically motivated attacks in August 2005 and June 2006, given the independent country information before the Tribunal regarding the changed political circumstances in Pakistan and the applicant’s renunciation of his membership of the PPPP, the [Tribunal] does not accept that there is a real chance that he would be subjected to persecution in the reasonably foreseeable future on the basis of his political opinion.
The tribunal traversed other aspects of the evidence before concluding:
113. Accordingly, having regard to all the evidence before it, including the Tribunal’s overall assessment regarding the applicant’s lack of credibility as a witness, the Tribunal does not accept that a person engaged in the low-level political activities identified by the applicant would attract the type of adverse political attention that has been claimed. Therefore, the Tribunal does not accept that the evidence before it establishes that the applicant, or member of his family or property, were subjected to physical attacks or threats of serious harm by rival political supports due to his political opinion in either August 2005, June 2006, July 2006 or at any subsequent time as claimed.
With respect to issues relating to allegations about the payment of bribes, the tribunal concluded:
118. As a result, having regard to all the evidence before it, the Tribunal does not accept that the applicant’s uncle paid a bribe to obtain an entry visa to Brunei for him. Nor does the Tribunal accept that the applicant had to pay an agent or his employer bribes in order to obtain a Tourist visa to Australia.
The tribunal traversed issues relating to claims of discrimination with respect to employment, including:
124. Accordingly, having regard to all the evidence before it, the Tribunal does not accept that the applicant suffered discrimination in Brunei or physical mistreatment at the hands of his employer based upon his nationality as claimed. In particular, the Tribunal finds that the termination of the applicant’s contract of employment by Aryan Zasha Ltd was related to performances issues specific to the applicant in this employment and was therefore not related to his nationality or any other Convention grounds.
125. In addition, the Tribunal finds that even if the applicant suffered a degree of discrimination in Brunei because he was a Pakistani, the Tribunal is does not accept that the evidence before it establishes that this discrimination constituted persecution as defined by section 91R of the Act.
The tribunal looked at the circumstances of the applicant's departure from Pakistan and Brunei, finding that:
130. However, given the totality of the evidence before it, the Tribunal does not accept that the account put forward by the applicant fully explains the applicant’s delay in coming to Australia, particularly in circumstances where the applicant claimed to fear persecution in Pakistan and that his position in Brunei had become unsustainable.
131. As a result, the Tribunal finds that the applicant has travelled outside of Pakistan without experiencing any difficulties from the Pakistani authorities. In addition, after taking into account the Tribunal’s earlier findings regarding the applicant’s political profile as a PPPP member and party worker, the Tribunal does not accept that the applicant was of any significant interest to the Pakistani authorities, despite his claimed strong opposition to the then ruling coalition.
The tribunal also considered the level of the applicant's knowledge of the political situation in Pakistan, given that his claim sounded in large part in his involvement with a political party in Pakistan, concluding:
134. …However, the Tribunal does not consider it plausible that a person who claims to have been as actively involved in PPPP politics over the period of time and in the manner described by the applicant, would not know the place of the PPPP in the current political situation in Pakistan. After taking into account all of the evidence before it, the Tribunal does not accept that the applicant’s lack of knowledge or apparent interest in these matters is due to his claim to have suffered negative experiences in the past due to his political activities as a PPPP party member, worker and office holder.
135. In addition, the Tribunal also finds that the applicant renounced his membership of the PPPP at the Tribunal hearing. Moreover, the Tribunal finds that at the Tribunal hearing the applicant was unable to commit to the PPPP cause if he returned to Pakistan in the reasonably foreseeable future. Accordingly, based on all the evidence before it, the Tribunal finds that as a low-level local PPPP party member and supporter the applicant does not have the kind of political profile in Pakistan that would attract the kind of adverse attention that could constitute serious harm in the reasonably foreseeable future.
With respect to the conduct of the State, the tribunal concluded:
137. As set out above, the applicant was able to obtain a Pakistani passport without any difficulty, despite claiming to be a long-standing PPPP supporter. In addition, the political situation in Pakistan has changed significantly since July 2007 and the applicant’s party, the PPPP now forms part of the coalition government there and its candidate is Pakistan’s Prime Minister.
138. Accordingly, together with the Tribunal’s earlier findings regarding the low-level and local nature of the applicant’s political activities in Pakistan and the applicant’s current disinterest in Pakistani politics, the Tribunal does not accept that the Pakistani authorities have any ongoing interest in the applicant, not that there is a real chance he will face serious harm capable of amounting to persecution in the reasonably foreseeable future from those authorities due to his political opinion or membership of a particular group, as a community activist who promoted women’s issues and who assisted the illiterate and poor in Pakistan.
The tribunal went on to consider claims relating to race, ethnicity and membership of particular social groups. The tribunal concluded:
141. In addition, at the Tribunal hearing the applicant gave vague responses, lacking specific detail, in response to the Tribunal’s questioning regarding his fear of persecution on the basis of his race, ethnicity or membership of a particular social group. Accordingly, taking into account all the evidence before it, the Tribunal has serious concerns that the applicant in this case has demonstrated a preparedness to alter his claims in order to enhance the prospects of success for his Protection visa application. In particular, the Tribunal considers that these new claims were introduced by the applicant because the political situation in Pakistan had altered dramatically since the applicant had lodged his Protection visa application and the risj that he would be persecuted by a Pakistani government, which included the party he claims to support (the PPPP), was not well-founded. As a result, the Tribunal does not find the applicant to be a credible witness. Accordingly, the Tribunal does not accept that the applicant is at risk of a real chance of persecution based on his race or ethnicity as a Pakhtuni or his membership of a particular social group, as a person who belonged to a small Pakhtuni family that originated from Afghanistan.
The tribunal then went on to consider whether the applicant could relocate within Pakistan should the tribunal have been in error in its findings, rejecting the applicant's claims for persecution, ultimately concluding that the applicant could relocate within Pakistan in any event even if his claims for persecution were well‑founded. Ultimately the tribunal's conclusions were:
156. Therefore, in assessing the applicant’s claims the Tribunal has had regard to the evidence and submissions provided by the applicant as well as the country information before it. However, the Tribunal observes that there were a number of inconsistencies in the evidence which raised serious doubts about both the credibility of the applicant and his claims, As a result, the Tribunal does not accept that there is a real chance the applicant would be targeted and suffer serous harm on the basis of his race, religion, ethnicity, or membership of a political group. Accordingly, the Tribunal does not accept that looking to the reasonably foreseeable future, the applicant has a well-founded fear of persecution in Pakistan on the basis of his race, ethnicity or religion. Nor does the Tribunal accept, having regard to the country information before it, that the applicant has a well-founded fear of persecution in Pakistan on the basis of his membership of a particular social group as either a community activist who promoted women’s issues and who assisted the illiterate and poor or as a person who belonged to a small Pakhtuni family that originated from Afghanistan.
157. In considering the applicant’s claims that he faces harm on the basis of his political opinion, the Tribunal notes that the independent country information before it indicates that the political circumstances in Pakistan have changed. Taken together with the applicant’s low-level political profile and his expressed lack of commitment to the political party for which he previously claimed to be a staunch supporter in Pakistan, the Tribunal does not accept that if the applicant returned to Pakistan he faces a real chance of being targeted on the basis of his political opinion.
158. For the reasons set out above, the Tribunal has doubts about the plausibility of the claims the applicant has put forward. However, even if the Tribunal proceeds upon the basis that that applicant was previously subjected to attacks by rival political supporters as claimed, the Tribunal does not accept that the applicant’s fear of serious harm in the foreseeable future is well-founded, even in the event that he elects to resume his PPPP activities once he returns to Pakistan. The Tribunal finds therefore that the applicant does not face a real chance of persecution in the reasonably foreseeable future on account of his pro-PPPP political opinion and/or activities.
159. Accordingly, and taking into account all of the above and considering the applicant’s claims on both an individual and cumulative basis, the Tribunal does not accept that the applicant faces a real chance of persecution for reasons of his race, ethnicity, religion, membership of a particular social group, or for any other Convention reason, if he were to return to Pakistan now or in the foreseeable future. Therefore, the Tribunal is not satisfied that the applicant has a well-founded fear of Convention-related persecution, now or in the reasonably foreseeable future, if he returns to Pakistan. Accordingly, the Tribunal is not satisfied on the evidence before it that the applicant is a refugee.
The applicant in oral submissions simply sought to have the matter reconsidered or reheard, as he does not accept that the decision of the tribunal is correct. This does not of itself found an arguable case for judicial review.
I turn then to consider the matters set out in the applicant's application under the Act that was lodged. They are contained within grounds (a) to (f).
Ground (a)
The first ground is the allegation that the tribunal misinterpreted the convention criteria with respect to whether or not the government was unable or unwilling to protect the applicant. In the context of this case the tribunal has found that the applicant was not at risk and rejected the applicant's case in this regard.
Even if the tribunal erred with respect to its findings with respect to the ability of the state to provide protection, in the context of this case it would make no difference to the outcome as the tribunal found that the applicant does not face a real chance of persecution in the reasonably foreseeable future. In these circumstances there is no need for the applicant to have protection from the state. The material indicates that the tribunal concluded that the applicant was not at any risk from the state.
Ground (b)
The second ground proceeds on the basis that the tribunal ought to have considered the case on the basis that the applicant would have a perceived political opinion. This case was run by the applicant on the basis that he was a significant member of a political party. It is not a case where perceived political opinions were an issue, in that the whole case related to his political opinion.
With respect to the future, even if the applicant had succeeded on his primary case, the tribunal found against him with respect to the amount of risk that he would suffer if he were to return to Pakistan. It does not appear to me that the tribunal could be said to have failed to consider an integer of the claim in this matter.
Ground (c)
The third ground relates to the tribunal's findings with respect to matters of fact relating to medical evidence and hospitalisation the applicant suffered.
It is not suggested that the tribunal failed to consider relevant material or made a decision that was so unreasonable that no reasonable decision‑maker could have reached that decision. For that reason, ground (c) appears to be a complaint about fact‑finding, which is not a matter that can be a subject of judicial review.
Ground (d)
The fourth ground attacks the tribunal's reasoning on the basis that the applicant says that the country information indicates that there is ongoing political violence and the tribunal's findings with respect to his likely political conduct in the future.
On the tribunal's reasons as drawn the tribunal rejected his claim initially in any event. The tribunal carefully considered the law with respect to the applicant's potential relocation within the country, having regard in particular to a decision of the Full Court of the Federal Court in SZDPB v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 110. It does not appear that it is the case that the tribunal erred in this regard, even if the applicant had established his reasonable fear of persecution in any event.
Ground (e)
The next ground is that it seems the tribunal is said to have erred in forming views with respect to the conduct of the government of Pakistan, given that the applicant was able to easily obtain a Pakistani passport and that the political party with which he was involved was now part of the coalition government in the country.
The inferences drawn by the tribunal from this material were open to it and this court is not in the position of reviewing findings of facts. This ground does not appear to me to found a basis for judicial review.
Ground (f)
The final ground attacks the tribunal's conclusions relating to the relocation. The test of this issue only arises if the applicant establishes that he has a case of well‑founded fear of persecution. That case was rejected by the tribunal and on the grounds set out above it does not seem to me that the applicant has an arguable case to attack that finding.
Thus, even if the tribunal did err in the relocation test (which it does not appear to me that it did, as set out above), it would nonetheless not found a basis for judicial review.
In all of the circumstances, I am not persuaded therefore that there is any purpose to be served in reinstating the application. Therefore I refuse the applicant's application to reinstate the matter and formally dismiss the application.
In the circumstances, the respondent has been successful. I order that the applicant pay the respondents’ costs, fixed at $700.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Riethmuller FM
Deputy Associate: Katherine Sudholz
Date: 22 October 2008