MZZIK v Minister for Immigration

[2013] FCCA 967

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZIK v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 967

Catchwords:
MIGRATION – Judicial review of Refugee Review Tribunal decision – application for a Protection (Class XA) Subclass 866 visa – no jurisdictional error – application dismissed.

Legislation:  

Migration Act 1958 (Cth) ss.36(2)(a), 36(2)(aa)

1951 Convention Relating to the Status of Refugees, Article 1

1967 Protocol Relating to the Status of Refugees

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Applicant: MZZIK

First Respondent: MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 359 of 2013

Judgment of: Judge Hartnett

Hearing date: 29 July 2013

Delivered at: Melbourne

Delivered on: 2 August 2013

REPRESENTATION

The Applicant: In Person

Counsel for the Respondent: Ms Whittemore

Solicitors for the Respondent: Sparke Helmore Lawyers

THE COURT ORDERS THAT:

1. The name of the First Respondent be changed to Minister for Immigration, Multicultural Affairs and Citizenship.

2. The Application filed 21 March 2013 is dismissed.

3. The Applicant pay the First Respondent’s cost fixed in the sum of $5,400.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

MLG 359 of 2013

MZZIK

Applicant

And

MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The Applicant filed an Application on 21 March 2013 for review of a decision of the Refugee Review Tribunal (‘the Tribunal’) dated 25 February 2013.  The grounds of the application, as stated by the Applicant, were as follows:-

   “1.  The decision of the Tribunal:

   a) is affected by an error of law;

   b) takes into account irrelevant considerations.”

2. The First Respondent filed a Response on 7 April 2013 seeking that the application be dismissed.  The Response noted that the application for judicial review did not provide any particulars or any legal ground of review and that it did not establish any jurisdictional error in the decision of the Tribunal dated 25 February 2013.

3. When the matter came before Registrar Allaway on 15 May 2013 there were orders by consent that on or before 12 June 2013, the Applicant file and serve:-

   a)any amended application including any additional grounds of review with complete particulars of each ground; and

   b)any affidavits. 

   Further, the Applicant was to file and serve written submissions.  The Applicant has not filed any amended application nor any written submissions.  The First Respondent filed an Outline of Submissions on 16 July 2013 on which the First Respondent relies.  There is also filed by the First Respondent and in evidence before the Court, the Court Book filed 14 May 2013.

4. The Applicant claimed at the hearing that he was awaiting representation by Victoria Legal Aid and sought an adjournment on that basis.  That application for an adjournment was refused by the Court.  The Applicant filed a Notice of Address for Service providing his residential address on 15 May 2013.  That notice was filed by him.  The application that is before the Court was made by the Applicant as a litigant in person and he continued to appear as a litigant in person before Registrar Allaway on 15 May 2013.  The Applicant handed to the Court and counsel for the First Respondent, two letters from Victoria Legal Aid from earlier in this year, the first indicating that Victoria Legal Aid had received his documents including the decision from which he wished to appeal, and otherwise indicating the time limits that he had in which to make an application to this Court; the potential of costs orders being made against him and the consequences of any such order; and other matters in respect of the running of this proceeding.  Victoria Legal Aid indicated at that time that they would assess the merits of his application.  The second of the two letters handed to the Court was correspondence of June 2013 requesting that the Applicant telephone the writer.  There is no evidence before the Court that Victoria Legal Aid has ever acted or proposed to act in these proceedings.  The Applicant had ample time to prepare his case and arrange any legal representation.  The matter proceeded on the appointed day of hearing.

5. The Tribunal decision made on 25 February 2013 affirmed a decision of a delegate of the First Respondent (‘the delegate’) dated 10 May 2012 to refuse to grant a Protection (Class XA) Subclass 866 visa to the Applicant.

History

1. The Applicant is a citizen of Pakistan who arrived in Australia on 3 July 2011 as the holder of a Student (Temporary) (Class TU) Subclass 572 visa.  He resided in Pakistan immediately prior to arriving in Australia but had previously lived and worked in Saudi Arabia for some four years from 2006 to 2010.  He worked as a receptionist in a hotel there. Eight months after arriving in Australia on a Student (Temporary) (Class TU) Subclass 572 visa, the Applicant lodged an application for a Protection (Class XA) Subclass 866 visa on 6 March 2012.  He claimed protection on the basis of his association with politician, Mr Noorul Haq Qadri and the Tanzeem Ahle Sunnat Wal Jamaat (‘ASWJ’) organisation.  He claimed to be a strong supporter of Mr Qadri and the ASWJ and claimed that he was “involved in all the activities” of ASWJ and Mr Qadri’s political campaigning.  He claimed that after he moved to Saudi Arabia in 2006, he remained “in touch with my [his] leaders” and was responsible for “all the arrangements” for Mr Qadri’s accommodation and visits to Saudi Arabia.  The Applicant further claimed that when he returned to Pakistan from Saudi Arabia in 2010, he was “one of the top workers and organisers in the area”. 

2. The Applicant also claimed that he had been threatened by the Tahreek-e-Taleban Pakistan (‘TTP’) leader and that in October 2010, there was an attempt to abduct him.  The Applicant feared “being killed or persecuted” and claimed that he was “at risk at all times everywhere in Pakistan in the hands of different militant organisations”.  He also claimed to fear harm on the basis of his Sufi religion as the ASJW was founded on Sufism principles.

The Tribunal Hearing

1. By letter dated 9 January 2013 sent to the Applicant, the Tribunal invited the Applicant to attend a hearing before it scheduled for 14 February 2013.  The Applicant attended the hearing and gave evidence in support of his claims.

Tribunal decision

1. Section 36(2)(a) of the Migration Act 1958 (Cth) (‘the Act’), provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister for Immigration and Citizenship (as he was then) (‘the Minister’) is satisfied Australia has protection obligations under the 1951 Convention Relating to the Status of Refugees, as amended by the 1967 Protocol Relating to the Status of Refugees (‘the Refugees Convention’).

2. Australia is a party to the Refugees Convention and, generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Refugee Convention.  Article 1A(2) relevantly defines a refugee as any person who:-

   “owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return it.”

3. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future. If a person is found not to meet the refugee criterion provided for in s.36(2)(a) of the Act, he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations, because the Minister has substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm (s.36(2)(aa) of the Act, the complementary protection criterion).

4. At the hearing before the Tribunal on 14 February 2013 the Applicant was unrepresented and did not require the services of an interpreter.  He had not presented any submissions, but requested of the Tribunal member that he be able to put before the Tribunal matters of concern to him with the delegate’s decision.  That course was agreed upon by the Tribunal member.  The Applicant noted the delegate had got his date of arrival in Australia wrong and that he had in fact arrived on 3 July 2011 not 2 July 2012 as was stated in the delegate’s decision.  On checking movement details, the Tribunal member noted that the Applicant had arrived on 3 July 2011.  The Tribunal member noted that upon looking at the delegate’s decision as a whole, he was of the view that the error of 2012, rather than 2011, was merely typographical and did not impact upon the decision. 

5. In respect of the various claims made by the Applicant the Tribunal made those findings as accurately set out in the First Respondent’s Outline of Submissions and being as follows:- 

   13. The Tribunal found that the applicant’s “failure to mention” that his brothers were with him during the attempted kidnapping and “of greater concern”, that a hooded motorcycle rider and the TTP leader’s brother was present, was “fatal to his claim”.  In making this finding, the Tribunal had regard to the fact that these people“were key” to the claimed attempted kidnap and that the applicant’s written statement was “otherwise detailed”, “showed a flare for detail” and “was comprehensive”.  The Tribunal did not accept that the applicant, who “presented as an articulate, well-educated person”, would have failed to report the presence of these people in his written application “if in fact they were there”.  As such the Tribunal found that the claims regarding the hooded motorcycle rider and the TTP leader’s brothers had been added falsely to give weight to the claim of the attempted kidnapping and raised significant questions as to whether the claimed incident occurred.

   14. The Tribunal also had serious concerns of the veracity of the applicant’s claim to be a high profile supporter of Mr Qadri.  It noted that the applicant was working in a hotel in Saudi Arabia from 2006 to 2010, and that he had attempted to elevate his role by saying he was responsible for arranging Mr Qadri’s visits to that country.  The Tribunal found this role had been “concocted for the purpose of providing a perception of a closer relation to the politician than was actual” and that he “had no role” in regard to Mr Qadri’s visits to Saudi Arabia.  The Tribunal also found that the applicant had no “significant role beyond a general relief aid worker” and that his evidence was “vague and general”.

   15. The Tribunal found that the applicant had “concocted” his claim that he had arranged for the issue of ID cards to women.  It found that the claim was “implausible” as there was a government office responsible for the issuing of ID cards.  It also found that the applicant was only in Pakistan for “barely a month” before he had to return to Saudi Arabia and that “he was not present for the election”.  It accordingly found the applicant’s claim to be “on the top of the list of activists” for Mr Qadri to be “false” and it did not accept it.  The Tribunal found that the applicant was not a target and did not have a close association or any role of significance with Mr Qadri.  It also gave no weight to the letter purporting to be from Mr Qadri having regard to country information concerning document fraud.  It found the document to be “self-serving” and did not reflect the real level of involvement of the applicant.  Even if the letter was from Mr Qadri, it did not lead the Tribunal to a finding that the applicant was an activist in light of the evidence “considered as a whole”. 

   16. Having regard to country information, the Tribunal accepted that the Sufi religion is prevalent in the applicant’s home area and that the applicant had an association with Mr Qadri’s family.  However, the Tribunal did not accept that the applicant had a close association with Mr Qadri or the ASWJ and found that his association with the organisation “was so weak as to have been inconsequential”.  Accordingly, it found that the applicant did not face a real chance of persecution for his association with ASWJ given his “lack of awareness”, “lack of interest” and “his exaggerations, fabrications, and inconsistencies in his claims”.  Having found that his association with Mr Qadri was “minimal”, the Tribunal did not accept that he faced a risk similar to high profile people associated with Mr Qadri. 

   17. The Tribunal had regard to the applicant’s “late action” regarding his Student visa and his delay in lodging a Protection visa.  It found that the applicant did not seek protection by relocating or taking any other immediate steps to protect himself after his claimed abduction in October 2010.  It found that the applicant only lodged his Student visa application in February 2011 and that although he could leave Pakistan after it was granted in May 2011, he did not do so until July 2011.  The Tribunal also found that the applicant did not lodge his Protection visa application until seven months after entering Australia and that this did not accord with a well-founded fear of persecution. 

   18. The Tribunal therefore found that the applicant did not have an objective or subjective fear having regard to the “delays in departure” and the “inconsistencies and implausibilities” in his claims.  It also find (sic) that there were not substantial grounds to find that the applicant faced a risk of significant harm as a consequence of being returned to Pakistan.”

Consideration

1. No particulars of the grounds set out in his application have been provided by the Applicant.  The Tribunal’s decision very clearly turned on its own assessment of the Applicant’s evidence.  The Tribunal did not accept the evidence of the Applicant.  No irrelevant considerations were taken into account by the Tribunal in its finding that the Applicant was not a witness of truth, and its rejection of his claims to fear harm.  The Tribunal’s numerous adverse credibility findings were open to it on the Applicant’s evidence.  The Tribunal put to the Applicant various concerns it had with his evidence and requested an explanation.  The Applicant was given considerable opportunity by the Tribunal to address its concerns about the inconsistencies in his evidence and the implausibilities in it, as it appeared to the Tribunal. Country information was put to the Applicant as to his claims and knowledge of relevant matters.  The Tribunal said at paragraph 178 of its reasons as follows:-

   “… I do not accept that these claims have been made in good faith …”

   and determined that the Applicant’s claims to engage Australia’s protection obligations in respect of his membership or association with Tanzeem Ahle Sunnat Wal Jamaat and a political senator, Mr Noorul Haq Qadri, were false. The Tribunal also considered the Applicant’s delay in entering Australia after obtaining his Student (Temporary) (Class TU) Subclass 572 visa, and then a further delay before the lodgement of his application for his refugee status did not support the Applicant’s claim that he had a well-founded fear of persecution.  This Court cannot engage in a merits review of the Tribunal’s decision (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 and 281-282). There is nothing in the decision which gives rise to jurisdictional error. Accordingly, the application will be dismissed and costs shall follow the event in the amount sought by the First Respondent.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Associate: 

Date:  2 August 2013