S1043 of 2003 v Minister for Immigration
[2006] FMCA 1001
•9 August 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| S1043 of 2003 v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1001 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – application dismissed. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.91X, 424A, 483A Migration Legislation Amendment (Electronic Transactions and Methods of Notification) Act 2001(Cth) |
| Yo Han Chung v University of Sydney & Ors [2002] FCA 186 Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30 SAAP v Minister for Immigration [2005] HCA 24 |
| Applicant: | APPLICANT S1043 OF 2003 |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG1436 of 2004 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 12 July 2006 |
| Delivered at: | Sydney |
| Delivered on: | 9 August 2006 |
REPRESENTATION
| Advocate for the Applicant: | The applicant appeared in person with the assistance of a Urdu interpreter |
| Advocate for the Respondents: | Ms S Hanstein |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The Refugee Review Tribunal is joined as the second respondent.
The name of the first respondent be amended to read ‘Minister for Immigration and Multicultural Affairs’.
The application filed on 17 May 2004 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to this application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1436 of 2004
| APPLICANT S1043 OF 2003 |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Proceedings
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) invoking s.483A of the Migration Act 1958 (Cth) (“the Act”) filed in the Sydney Registry of the Federal Magistrates Court of Australia on 17 May 2004 for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal decision was made on 10 August 1998, affirming a decision of the delegate of the first respondent made on 10 September 1997, refusing to grant the applicant a Protection (Class XA) visa. The applicant seeks unstated relief against the decision of the Tribunal.
The applicant in these proceedings is not to be identified pursuant to s.91X of the Act and has been given the pseudonym “Applicant S1043/2003”.
The applicant has not sought to join the Tribunal as a party, however given that it is an exercise of the Tribunal’s jurisdiction that is under review, I will make the appropriate order that the Tribunal is joined as a party: SAAP v Minister for Immigration [2005] HCA 24 at [43], [91], [153] and [180].
Background
The Tribunal decision of W M Berkley, reference N97/19656, provides the following background information. The applicant, who is a citizen of Pakistan, arrived in Australia on 3 October 1995. On 29 December 1995, he lodged an application for a protection visa with the Department of Immigration under the Act. On 10 September 1997, a delegate of the Minister refused to grant a protection visa and on
3 October 1997, the applicant sought review by the Tribunal of the delegate’s decision.(Court Book (“CB”) 112)
In written submissions to the Department dated 27 December 1995 and 2 January 1996, the applicant claims to be a 47 year old married Muslim man. His wife, daughter and three sons remain in Pakistan. The applicant completed approximately eight years of schooling and speaks, reads and writes Urdu and Punjabi. The applicant claims he belongs to the Qadiyani minority group and that all Qadiyani suffer at the hands of the government since being declared a minority in
1974-1975. Even as a child, the applicant was called a ‘non-believer’ by other children and his teachers were biased against him., which resulted in his leaving school at an early age.(CB 114)
The applicant provided the Tribunal with an extensive list of his clashes with the police and government bodies, resulting in him moving to different locations within northern Pakistan at various times. The applicant alleges that these problems were due to his Ahmadi faith. However, during his interview with the Department on 21 August 1997, the applicant appeared to have little knowledge of Mirza Ghulam Ahmad or the distinction or difference between Qadiyani and other Ahmadi.(CB 116)
Following that interview, his then migration adviser made a further submission to the Department on 5 September 1997. In that submission, the adviser stated that the applicant is a simple man from a rural background for whom questions of religious details make no sense. The adviser submitted that the applicant did not make a conscious decision based on an evaluation of competing religious doctrine, but chose to follow a particular leader(s) because of his background. The adviser submitted that the applicant credibly identifies as Ahmadi and is accepted as such by the Ahmadi community, both in Pakistan and Australia. However, the adviser chose not to provide documentary support from the Ahmadiyya Muslim Association of Australia. The adviser also submitted that the applicant is Mohajir, although not a member of the Muttahida Quami Movement, and that he is identifiable as Kashmiri by his accent and “personal origins”. The adviser submitted that the applicant’s father was born in Rajwary in “occupied Kashmir” and fled to Mirpur in Azad Kashmir in 1947. The applicant was born in Mirpur in 1950 and the family moved to Gujranwala and obtained a parcel of land to farm in Jammuwala, Aminabad.(CB 116)
In written submissions to the Tribunal and a statutory declaration dated 17 April 1998, the applicant set out a chronology in great detail. It detailed his education and employment history and his numerous relocations because of his religion and the activities of anti-Ahmadi and Muslim extremist groups. The applicant also set out details of the breakdown of his marriage because of allegations made by his wife’s family, culminating in his arrest and a charge of blasphemy.(CB 119)
The applicant attended the Tribunal hearing on 21 April 1998 and the member recorded in considerable detail the claims made by the applicant, together with new claims and significant amendments to his original application. The amendments were because he believed the original application required him to make submissions which had to be embellished or enhanced in order to make his story more believable. Part of the changes were in respect to the number of children he had, which was altered from six to one child, as he did not think he would be believed if he was married for a considerable period of time and only had one child. This is inconsistent with other claims that the marriage broke down due to the intervention of his wife’s family.(CB 120-126)
Tribunal’s Findings and Reasons
The applicant claimed to have a well-founded fear of persecution because he is an Ahmadi and Mohajir. The Tribunal made strong adverse credibility findings as follows:
The Tribunal found the applicant to be severely lacking in credibility to the extent that the Tribunal is unable to accept anything the applicant has claimed to be true. His evidence was largely incomprehensible and disjointed. He was unable to give straight answers to many questions. His responses to questions were often evasive, exaggerated and implausible. His claims have expanded and have been embellished over time. The applicant himself admitted that some aspects of his story were concocted in order to enhance his claims (see for instance the claims made at the Tribunal hearing about the date of his marriage and the number of children he has). He made some claims which are remarkably similar to things which happened to his friend who appeared before the Tribunal as a witness…Most of his claims are so internally inconsistent with other claims which he made in his submissions and interviews that the Tribunal is unable to piece his story together at all.(CB 131)
The Tribunal concluded that the applicant was not an Ahmadi and would not be identified or accepted as one. Further, it found that the applicant did not generally claim to be Mohajir, but if he were, he did not genuinely fear persecution on that basis.
Application for Review of the Tribunal’s Decision
On 17 May 2004, the applicant filed an application for review under s.39B of the Judiciary Act setting out the following ground:
I arrived in Australia in 1995 and lodged an application for protection visa, because I had a well founded fear with evidence of being persecuted due to my religion in my home country. My application was rejected by the DIMIA. I applied to RRT in 1997, but RRT overlooked the evidences I presented and affired the decision same as DIMIA. I was part of a class action against DIMIA in High Court which was also failed in May 2004. I want to appeal to Federal Court to look at my matter in details, I am not satisfy with DIMIA and RRT decisions, I have all evidence in my files which clerly proves that I do have well founded fear of being persecuted due to my religion if I return to my country of origin. (copied without alteration or correction)
The applicant appeared before Registrar McIllhatton at first directions on 24 August 2004. On that date, the Registrar made orders requiring that the applicant file an amended application by 8 October 2004, setting out in full the grounds relied upon, together with any affidavit material. This order has not been complied with.
Reasons
The applicant is a self-represented litigant, who appears with the assistance of an Urdu interpreter. The applicant confirmed that he had not filed an amended application nor provided written submissions to the Court, as required by the orders made by Registrar McIllhatton on 24 August 2004. When the applicant was invited to make oral submissions in support of his application, he restricted this to a statement that he had been in Australia since 1995 and had not been able to work for the last ten years. He said that he relied on friends to house and keep him. He also indicated that he had been separated from his wife and children during that period. The applicant said that he did not understand English or the Australian legal system, and was unable to afford a legal adviser in the preparation of his application.
Ms Hanstein, appearing for the respondents, submitted that the applicant said that he was an Ahmadi and Mohajir and therefore suffered persecution. This was the only basis of his claim. Further that the Tribunal properly considered the applicant’s claim and made findings that were open to it on the material before it. It found that the applicant severely lacked credibility to the extent that the Tribunal was unable to accept anything the applicant claimed to be true. As such it was not satisfied the applicant has a well-founded fear of persecution in Pakistan for a Convention reason nor that the applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.
The Tribunal decision was made on 10 August 1998, which is before the introduction of s.424A to the Act. Section 424A was introduced by the Migration Legislation Amendment (Electronic Transactions and Methods of Notification) Act 2001 (Cth). It was assented to on 28 June 2001 and became operative on 10 August 2001.
Ms Hanstein submits that even if the Tribunal decision is affected by jurisdictional error, relief should be refused in the exercise of the Court’s discretion on the basis of an unexplained delay in commencing these proceedings, and in particular, the delay between the Tribunal’s decision and the applicant joining the Muin and Lie class action on
9 March 2000: Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30.
Conclusion
As the applicant is a self-represented litigant, I acknowledge the additional obligation placed on this Court to independently consider whether any argument based on the material could have been made out: Yo Han Chung v University of Sydney & Ors [2002] FCA 186. I have reviewed the contents of the Court Book and reconsidered the Tribunal decision in light of that obligation. There is no transcript of the Tribunal proceedings before the Court and effectively no grounds or submissions alleging jurisdictional error. I am satisfied that the Tribunal has undertaken its role correctly and that no jurisdictional error is identifiable on the face of the documents before me. Consequently the applicant’s claim should be dismissed.
I am satisfied that an order for costs should be made in this matter. I order that the applicant pay the first respondent’s costs and disbursements of and incidental to this application.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
Date: 8 August 2006
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