MZZLR v Minister for Immigration

[2014] FCCA 338

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZLR v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 338

Catchwords:
MIGRATION – Application for review of decision by the Refugee Review Tribunal – failure to specify error of law or irrelevant considerations taken into account by the Refugee Review Tribunal – no jurisdictional error found – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.36(2)(aa)

Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24
Minister for Immigration and Citizenship v SZIAI (2009) 111 ALD 15

Applicant: MZZLR

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 772 of 2013

Judgment of: Judge Whelan

Hearing date: 10 February 2014

Date of Last Submission: 10 February 2014

Delivered at: Melbourne

Delivered on: 10 February 2014

REPRESENTATION

Counsel for the Applicant: Applicant in person

Counsel for the Respondents: Ms Graycar

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The name of the First Respondent be amended to “Minister for Immigration and Border Protection”.

2. The request for an adjournment of these proceedings by the Applicant is refused.

3. The Application filed 30 May 2013 be dismissed.

4. The Applicant pay the costs of the First Respondent fixed in the sum of $5,400.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 772 of 2013

MZZLR

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Application for adjournment

1. At the commencement of the proceedings, the Applicant made an oral application for an adjournment. The Applicant seeks that the matter be adjourned in order for him to obtain legal advice. The application in this matter was lodged on 30 May 2013. On 5 June 2013, the solicitors for the Minister wrote to the Applicant, notifying him that they appeared for the Minister and provided the Applicant with a list of organisations from which he might obtain legal advice. The letter also stated that if the Applicant had any queries, he was welcome to contact them.

2. On 7 August 2013, the matter was listed for a directions hearing before Registrar Allaway. At that hearing, certain orders were made, including that the matter be listed for a Final Hearing on 10 February 2014 at 2.15 p.m.[1] The Applicant was also provided with a notice of listing on 14 August 2013, indicating when and where the Final Hearing would occur, being on 10 February 2014 at 2.15 p.m. I am satisfied that the Applicant had ample opportunity to obtain legal advice, given the length of time between when he was notified of this hearing and the date of the hearing, a period of some six months. On that basis, the oral application for an adjournment of these proceedings is refused. 

   [1] Order made 7 August 2013 by Registrar Allaway.

The substantive application

1. This is an application for judicial review of a decision of the

   
   

   Refugee Review Tribunal (“the Tribunal”) of 1 May 2013.

   
   

   The Tribunal affirmed a decision of the delegate of the Minister to reject the Applicant’s claim for a Protection (Class XA) visa.

   
   

   The Applicant now seeks the following orders: 

   1.  A declaration that the decision of the Tribunal dated

   
   

   31 January 2013 is unlawful, void and of no force and effect.

   2.  Certiorari quashing or setting aside the decision of the Tribunal.

   3.  Prohibition directed to the first Respondent prohibiting him from acting upon or giving effect to or proceeding further upon the decision of the Tribunal.

   4.  Mandamus or an injunction compelling the first Respondent to cause the Tribunal to consider and determine according to law the Applicant’s application for a protection visa.

   5.  Costs.

   6.  Such further order or other Relief (sic) as the Court deems appropriate.[2]

   [2] Application filed by MZZLR filed 30 May 2013, at p.2.

2. The delegate’s decision was made on 23 March 2012. The Applicant filed an application with the Tribunal on 20 April 2012. He was invited to appear before the Tribunal to give evidence and present argument, which he did so at a hearing on 27 November 2012. The Applicant was assisted at that hearing by an interpreter. He was notified of the Tribunal’s decision on 2 May 2013, and, on 30 May, the Applicant made this application for judicial review. 

Background

1. The Applicant is a Pakistani national who arrived in Australia on

   
   

   16 October 2011 on a tourist visa. When he applied for a protection visa on 9 January 2012, the Applicant set out his claims in a detailed statement provided in support of that application on 13 February 2012.[3]

   [3] Court Book filed 12 July 2013, at pp.61-64.

2. The Applicant stated that he was born in Pakistan on 8 July 1978, at a time when his father was working in Qatar. He and his Mother joined his Father in Qatar in 1979 and later moved to Saudi Arabia where his Father found work. The Applicant’s parents continued to reside in Saudi Arabia, but he returned to Pakistan in 1993.

3. After returning to Pakistan, the Applicant studied with a private tutor while working in a guesthouse until 1997. In 1998, he went to Qatar to find work, which was unsuccessful, and then travelled to Saudi Arabia in 2000. In 2002, the Applicant went to Swat in Pakistan, and, in 2003, he married. His wife and children remain in Pakistan. After his marriage, a Senator the Applicant had met through his Uncle during the time he worked in his Uncle’s guesthouse, offered him a job as a personal secretary. In this capacity, the Applicant travelled with the Senator, including to Malaysia, Japan and Saudi Arabia, and attended to the Senator’s diary and personal calls.

4. In 2008, while the Applicant’s family were in Swat, his son had a kidney tumour. The Applicant claimed that, because the Taliban were in full control of Swat, many doctors had left the area and his son was unable to receive proper treatment. After the death of his son, the Applicant sent his family to Karachi. In October 2008, the Applicant was involved in Jirgas in which the Senator, for whom he was working, attempted to negotiate peace between the Sunni and Shia. Later that month, the Senator’s younger brother was abducted but was able to bribe his captors and was released some months later.

5. After this incident, the Applicant went to Saudi Arabia where he worked between December 2008 and December 2009.

   
   

   He recommenced work with the Senator in January 2010 and remained working for him until the Applicant left for Australia. The Applicant claims there was considerable opposition in tribal areas to the Senator’s work in trying to achieve peace between the Sunni and Shia. In 2010, the Applicant travelled to Saudi Arabia for his brother’s wedding.

   
   

   On his return to Karachi, the Applicant was with his family in a taxi when they were attacked.

6. The Applicant claims that there are plans to kill the Senator and his brothers, and, because of his close relationship to the Senator, he is also under threat.

The Tribunal’s decision

1. The Tribunal set out the claims made by the Applicant in his application for a protection visa and in his statement in support of that application.[4] The Tribunal referred to country information about the current situation in Karachi, noting that violence is endemic there and that the city has seen a continuing deterioration of law and order leading to generalised violence.

   [4] Court Book filed 12 July 2013, at pp.61-64.

2. The Tribunal referred to the absence of country information specifically related to whether people who have returned to Pakistan, after having lived in western countries, face particular difficulties or are perceived as becoming westernised or not true Muslims.

   
   

   With respect to the Applicant’s claims around his work with the Senator, the Tribunal made the following findings: 

   ·The Tribunal accepted that the Applicant had worked closely with the Senator from 2002 to 2003 until he came to Australia after a year’s break in Saudi Arabia, and that the Applicant saw himself as a member of the Senator’s family; 

   ·The Tribunal also accepted that the Senator could be considered to be a high profile member of the legislature of Pakistan and had raised his voice for peace and was trying to build peace in tribal areas via meetings with Sunni and Shia; 

   ·The Tribunal accepted that the Senator had attended two Jirgas, including one in October 2008, and that the Applicant had accompanied the Senator to that Jirga; 

   ·The Tribunal did not accept that the Applicant himself had great involvement in working for peace. This was because of the Applicant’s own evidence as to his role, which was to check the people at the door to the Jirgas and otherwise assist the Senator in his capacity as a private secretary;

   ·The Tribunal noted that the Applicant did not claim to have done more than assist the Senator, nor did he claim to have been personally threatened or harmed, though the Applicant claimed he would be targeted because of the Senator’s actions and his association with the Senator; 

   ·The Tribunal accepted that the Senator may have been targeted by people opposed to his actions and may have had threats made against him, including to kill him, as a result of his peace work, and that in October 2008, a leader of the Masozi family, who the Applicant claimed to be associated with the Taliban, spoke out against the Senator’s peace proposals; 

   ·The Tribunal did not accept that there was a real chance that the Applicant would be harmed in the future because of his employment with the Senator. After the Senator’s brother had been abducted in 2008, the Applicant did not refer to any further incidents involving the Senator or his family; and 

   ·The Tribunal found that the Applicant had suffered no harm due to his work for, and claimed close association with, the Senator.[5] 

   [5] Court Book filed 12 July 2013, pp.112-113, at paras.36-43.

3. In relation to the Applicant’s claim about the attack he experienced in Karachi in 2010, the Tribunal noted that the Applicant’s evidence about this was not precise, though the Applicant says he was hit, and called “mashruti”, which roughly translates as ‘cocky’.[6] The Applicant stated that he went to the park with his family and there was an announcement to leave the park as there was unrest in the area.

   
   

   The Tribunal asked the Applicant why, in those circumstances,

   
   

   he considered it to have been a personal attack, rather than generalised violence. The Tribunal found the Applicant’s responses “implausible and confused”,[7] and noted that the Applicant was unable to give a credible explanation for why he thought that he had been targeted personally, finding that the attack to have been a “random and generalised act of violence”.[8]

   [6] Ibid, p.114 at para.44.

   [7] Court Book filed 12 July 2013, p.114 at para.49.

   [8] Ibid.

4. The Tribunal concluded there was no real chance that the Applicant would be kidnapped or harmed in any way, and there was only a remote and speculative chance that he would be harmed if he continued to work with the Senator. Therefore, there was no real chance that the Applicant would be harmed for a Convention-related reason on his return to Pakistan.

5. On the basis of country information, the Tribunal did not consider the Applicant to be at risk of harm for having travelled to Australia and having sought asylum here.

6. The Tribunal also considered whether the Applicant had a claim for complementary protection under s.36(2)(aa) of the Migration Act 1958 (Cth) (“the Act”). It found that there was no real risk that the Applicant would be harmed for his work for the Senator, nor targeted for attack in Karachi or elsewhere, and, therefore, the Tribunal was not satisfied there were substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to Pakistan, there was a real risk the Applicant would suffer significant harm.

Grounds for review

1. The Applicant’s grounds for review are as follows: 

   1.  The decision of the Tribunal:

   (a)    is affected by an error of law.

   (b)    takes into account irrelevant considerations.[9]

   In proceedings before the Court, the Applicant was unable to identify what the error of law was on the part of the Tribunal, or what the irrelevant considerations were that the Tribunal took into account. 

   [9] Application filed 30 May 2013, at p.2.

The First Respondent’s submissions

1. The First Respondent submitted, in written submissions,[10] that, in the absence of any particulars being identified, it was difficult to respond to either of these grounds. From a reading of the information provided by the Applicant in his statement,[11] it would appear that that Tribunal dealt comprehensively with his claims and gave him the opportunity to elaborate on those claims at the hearing.

   [10] Outline of Submissions for the First Respondent, filed 3 February 2014.

   [11] Court Book filed 12 July 2013, at pp.61-64.

2. The First Respondent provided two examples of this: 

   ·First, where the Tribunal stated that the Member repeatedly asked the Applicant if anything else had happened to make him fear returning to Pakistan and the Applicant repeated only the claimed incident in 2010; and 

   ·Second, the detailed report of the questioning about the incident in Karachi.

   The First Respondent submitted that, in the absence of any identification of the error of law, the first ground could not be made out.

3. The First Respondent further submitted that it is not clear what, if any, irrelevant consideration the Applicant alleges was taken into account impermissibly. The First Respondent referred to the case of the Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24 on the issue of the judicial review grounds of failing to take into account relevant considerations, or impermissibly taking into account irrelevant considerations. In that case, Mason J, as he then was, pointed out that this ground is made out only if a decision-maker takes into account a matter the statute prohibits him, or her, for taking into account and the factors that must, or must not, be taken into account are to be found either expressly in the relevant act, or by reference to the subject matter, scope and purpose of the act.[12]

   [12] (1986) 162 CLR 24 at 39-41.

4. There is nothing that emerges from a reading of the Tribunal’s Statement of Decision and Reasons[13] which suggests that the Tribunal impermissibly considered a matter that the Act prohibited it from taking into account. In those circumstances, the second ground must also fail.

   [13] Court Book filed 12 July 2013, at pp.106-116.

5. As the Applicant is entitled to relief sought only if he can demonstrate jurisdictional error on the part of the Tribunal, the application for judicial review should be dismissed. 

Conclusions

1. The application does not specify the basis upon which the Applicant claims that the decision of the Tribunal is affected by an error of law, or what the Applicant says are the “irrelevant considerations”[14] taken into account by the Tribunal. Before the Court, the Applicant was still unable to identify an error of law or the irrelevant considerations he refers to.

   [14] Application filed 30 May 2013, at p.2.

2. In response to questions from the Court, the Applicant stated that the Tribunal had not contacted a witness, the Senator, who could have shed more light on his situation. As the First Respondent pointed out,

   
   

   there is no positive obligation on the Tribunal to obtain further information, particularly where there is nothing to indicate that any further inquiry by the Tribunal could have yielded a useful result. The authority for that principle is the Minister for Immigration and Citizenship v SZIAI (2009) 111 ALD 15. In this case, the Tribunal accepted the evidence given by the Applicant about his involvement with the Senator, but found that the Applicant had not suffered any harm due to his work for, or close association with, the Senator.

   
   

   It concluded that there was only a remote and speculative chance that the Applicant would be harmed if he continued to work for the Senator. There was nothing to indicate that there was any reason to contact the Senator, or that contacting him would yield any useful result.

3. The Tribunal correctly identified the Applicant’s claims and dealt with each of them. There was no failure to consider a claim and the Tribunal gave rational reasons for its rejection of the Applicant’s claim for protection. The matters taken into account all appear to be relevant to the Applicant’s claims. For the most part, those matters arise from the material presented by the Applicant himself, with some limited reference to country information upon which the Tribunal was entitled to rely. In the absence of any identifiable jurisdictional error, the application must be dismissed.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Whelan

Associate: 

Date:  26 February 2014