S1404 of 2003 v Refugee Review Tribunal
[2006] FMCA 1319
•31 August 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| S1404 of 2003 v REFUGEE REVIEW TRIBUNAL & ANOR | [2006] FMCA 1319 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of Refugee Review Tribunal affirming decision not to grant protection visa – citizen of Pakistan claiming fear of persecution for reason of political opinion. PRACTICE & PROCEDURE – Adjournment – application for adjournment – adjournment refused. PRACTICE & PROCEDURE – Party to proceeding – Individual Member constituting Refugee Review Tribunal should not be joined as a respondent in application for prerogative relief. |
| Migration Act 1958 (Cth), ss.424A, 474 |
| Re Ruddock; Ex part Reyes (2000) 75 ALJR 465 applied |
| Applicant: | APPLICANT S1404 OF 2003 |
| First Respondent: | REFUGEE REVIEW TRIBUNAL |
| Second Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| File number: | SYG 3410 of 2005 |
| Judgment of: | Scarlett FM |
| Hearing date: | 26 June 2006 |
| Date of last submission: | 26 June 2006 |
| Delivered at: | Sydney |
| Delivered on: | 31 August 2006 |
REPRESENTATION
| Applicant: | In Person |
| Counsel for the Respondent: | Dr Allars |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
The application for an adjournment is refused.
The title of the Second Respondent is changed to Minister for Immigration & Multicultural Affairs.
The name of Ms Christine Long is removed as a party to the application.
The title of the First Respondent is Refugee Review Tribunal.
The application is dismissed.
The Applicant is to pay the First Respondent's costs fixed in the sum of $8,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3410 of 2005
| APPLICANT S1404 OF 2003 |
Applicant
And
| REFUGEE REVIEW TRIBUNAL |
First Respondent
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an application for review of a decision of the Refugee Review Tribunal made on 4th October and handed down on 27th October 2005.
The Tribunal affirmed a decision of the delegate of the Minister not to grant the Applicant a protection visa. The Applicant seeks orders quashing the Tribunal's decision and remitting his application to the Tribunal for reconsideration according to law.
Application for adjournment
The Applicant sought an adjournment of the hearing on the basis of an affidavit that he handed up in Court. He referred to the fact that two of his earlier Department of Immigration & Multicultural and Indigenous Affairs files had been destroyed due to the passage of time and he had sought particulars of those files. I do not see that matter to be of any relevance to the proceedings before this Court.
The Applicant said further in his affidavit:
I have asked the Law Society of New South Wales for Pro Bono Scheme Legal Advice. One of the requirements is to provide them with the RRT Legal Advice Scheme letter and written comments from the advisor. I had received advice on the 16 July 2006. I am waiting for the approval of Pro Bono Legal Advice.
I received the submission letter from the legal advisors of first respondent dated 22 June 2006 on Sunday. I couldn't find time to go through submissions and consult advisor.
Counsel for the First Respondent opposed the adjournment.
I have decided to refuse the application for an adjournment.
The Applicant commenced these proceedings on 22nd November 2005. His application came before the Court for the first time on the
20th December 2005. On 3rd March 2006 his application was referred to a legal adviser on the RRT legal advice panel for legal advice. His application to the Law Society of New South Wales is his second application for legal advice. In my view, the Applicant has had sufficient time to obtain legal advice or representation.
Background
The Applicant is a citizen of Pakistan who arrived in Australia on
4th April 1994. He applied for a Protection (Class XA) visa on
29th July 1994 but it was refused on 9th May 1998. The Refugee Review Tribunal affirmed the delegate's decision on 22nd June 2000.
The Applicant sought a review of that decision in this Court and on
28th April 2005 I made orders by consent that writs of certiorari and mandamus should issue and the application for review was remitted to the Tribunal for determination according to law.
The Applicant attended a hearing of the Tribunal on 8th August 2005. He told the Tribunal that his race was Mohajir and he feared persecution for political affiliation with the Mohajir Qaumi Movement (MQM), a party opposed to the ruling party in Pakistan. He stated that he could not obtain protection in his country because of negative policies and discrimination against the MQM. Many MQM leaders have been assassinated by government agencies. He said that he was detained in the central prison in Karachi during a public uprising against the government and between 1988 and 1990 his house had been sprayed with bullets. He left Pakistan in 1991 and went to the Philippines in that same year. He resumed his university studies there and obtained an MBA. He left the Philippines in 1994 and came to Australia.
The Tribunal’s findings and reasons
The Tribunal's findings and reasons are set out on pages 764 to 769 of the Court Book. The Tribunal found that the Applicant was a citizen of Pakistan and is a Mohajir. The Tribunal accepted that independent country information supported, in a general way, the Applicant's claims about conflict and violence towards MQM members and activists in Pakistan including in Karachi.
The Tribunal accepted that the information supported the Applicant's claims of discrimination and violence towards Mohajirs. The Tribunal did not accept that the Applicant's history of leaving Pakistan and travelling to the Philippines in 1991 and then to Australia in 1994 were consistent with his claims of having been persecuted and fearing further persecution.
The Tribunal did not accept that the documents submitted by the Applicant assisted him and did not accept those documents as truth of the facts about his claims. The Tribunal set out its reasons for not accepting the Applicant's documentary evidence. The Tribunal was not satisfied as to the Applicant's credibility. The Tribunal was also not satisfied about the Applicant's evidence relating to his wife or the Applicant's wife's evidence.
At page 769 of the Court Book the Tribunal says:
The Tribunal does not consider that the applicant's wife's evidence before the tribunal assists the applicant in his claims. She said that she was told things by the applicant and his family members about what happened to the applicant in Pakistan. Given that the tribunal does not accept that the applicant is a credible witness and also given that it cannot test the statements made by the applicant's family members to the applicant's wife, in these circumstances the tribunal places no weight on her evidence. In the Tribunal's view there is no evidence before it which enables it to conclude that the applicant's wife will be harmed if she goes to Pakistan with the applicant.
There is no plausible evidence before the Tribunal that the applicant is/was an MQM member and was involved in MQM political activities or any political activities while he was in the Philippines as he claims. The Tribunal does not accept that he will face harm if he returns to Pakistan for this reason as he claims.
The Tribunal found that there was no plausible evidence before it or that the Applicant or his wife would suffer persecution from authorities, police, members of the opposing political party or parties or anyone else in Pakistan because of his political opinion or activities, his race or for any other convention reason, either at that time or in the reasonably foreseeable future if he were to return to Pakistan.
The Tribunal was not satisfied on the evidence before it that the Applicant had a well-founded fear of persecution in Pakistan within the meaning of the convention.
The Tribunal affirmed the decision not to grant the Applicant a protection visa.
Application for judicial review
The Applicant has commenced proceedings in this Court for review of the Tribunal's decision. In his amended application filed on 19th June 2006 he sets out at paragraphs one to nine a statement of the factual bases of his claim.
He sets out some ten grounds of his application:
1.On 27th April 2005, Honourable Federal Magistrate Court Judge ordered a writ of mandamus issue requiring RRT to determine the Applicant visa application according to the law as the original decision of RRT back in 2000 was quashed. On 4th October 2005 RRT should have made fresh decision based upon my submissions in interview rather than previous decision record of 6th July 2000.
2.The Refugee Review Tribunal did not take into account recent independent country information from independent sources like Human Rights Watch, Amnesty International, Prisoner Aid Society of Pakistan etc. which reports extra judicial killing and torture of the members of MQM of which the Applicant is a member.
3.RRT in its fresh decision mentioned country information that document fraud is pervasive in Pakistan. The RRT refused to accept any of my submissions and documents of facts. The doubt must be particular and up to date to reject the submissions.
4.I studied and lived in Karachi throughout my life in Pakistan. My educational documents, national identity card, certificate of domicile and passport prove the fact.
5.I was resident of Karachi, Pakistan as my Certificate of Domicile proves it but RRT fails to accept it as evidence of truth.
6.RRT made judgmental errors in its decision as it was done during previous hearing on July 2000.
The Applicant then sets out in sub-paragraphs (a) through to (j) a variety of factual criticisms of the Tribunal's decision.
7.Applicant married in 2004 with Fijian lady holding Australian permanent residency. The applicant and his spouse will be exposed to danger due to differences in appearance and accent.
8.RRT deliberately overlooked the submissions from Amnesty International Australia expressing its concern that there is real chance of persecution if applicant returns to his country of origin. RRT didn't read country information which is favourable and supportive to my case.
9.RRT did not consider in its decision that the basic requirements of Migration Act (1958) Article 1A (2) are fulfilled by the applicant.
10.RRT decision should be quashed on the basis of above factual errors and reconsidered for proper hearing taking into account the applicant's own circumstances according to Refugee Convention 1958.
Those are the grounds upon which the Applicant relies. The applicant attended Court on the hearing and criticised the Tribunal for relying on previous evidence before the previous Tribunal hearing as a basis for rejecting his application. He told the Court that the Tribunal had used out-dated evidence in making its decision. He had submitted material dated 2005 but the Tribunal used evidence from 1995.
He complained that the Member of the RRT had informed him that two of his files had been missing. He submitted that the Tribunal completely overlooked the evidence that appears on page 718 of the Court Book which was a letter written by the Applicant on the
19th August 2005 about his Pakistani passport, his marriage to a Fijian Indian lady and his contact with the Deputy Inspector General's Office in Karachi to inquire about documentation there.
He submitted with that letter some country information from Amnesty International, a letter from the Pakistan embassy, a statutory declaration from his brother and an update about unrest in Pakistan.
The applicant said that the Tribunal should have disclosed the source of the information upon which it relied to dismiss his application and then made an application for an adjournment. I read the Applicant's submissions and considered his affidavit. I heard submissions from counsel for the First Respondent; Dr Allars and I told the Applicant that I would be refusing his application for an adjournment. I provided short reasons on the spot and I have provided in more detail my reasons in this decision.
Considering the Applicant's claims as to the evidentiary basis of the Tribunal's decision; I am satisfied that the Tribunal did not base its decision on the previous Tribunal hearing but on the Applicant's oral evidence given before the Tribunal on 8th August 2005 and on the Applicant's written submissions. I am not satisfied that ground two, which is the Applicant's claim that the Tribunal failed to take into account country information about persecution of members of the MQM.
It is quite clear from the findings and reasons that the Tribunal did take that information into account, including country information provided by the applicant and that, as appears at page 765 of the Court Book, the Tribunal agreed that independent country information supported the Applicant's claims in a general way about violence directed towards MQM members, particularly including in Karachi, and discrimination and violence towards Mohajirs. It is quite clear the Tribunal did take that material into account. The Tribunal in fact made such a finding. The Tribunal was not required to set out the country information in detail in its findings.
The third ground in the Applicant's claim about the Tribunal's mention of country information does not state a ground of review as such. The Tribunal was entitled to take into account country information. The Tribunal, during the course of the hearing, referred the Applicant to that country information and gave him an opportunity to respond to the Tribunal's doubts about the authenticity of the Applicant's documentations.
As to the fourth ground; it is no more than a statement of fact and indeed the Tribunal accepted those matters. Similarly, the Applicant's fifth ground relating to his residence in Karachi, is also an assertion as to factual matters. The Tribunal did not doubt that the Applicant was a citizen of Pakistan, nor did it doubt that the Applicant was a Mohajir.
As to ground six and its various sub-paragraphs, they were all factual assertions. If the Applicant is challenging factual findings by the Tribunal that is no more than a claim for merits review which is not available and indeed is outside the scope of judicial review.
Paragraph seven or ground seven relates to the Applicant's marriage to a Fijian lady holding Australian permanent residency. It is a factual assertion and indeed the Tribunal did not doubt that the Applicant was married. The Tribunal did consider evidence from both the Applicant and his wife about what risk, if any, there would be upon travelling to Pakistan.
In respect of the eighth ground; the Applicant complained that the Tribunal deliberately overlooked the submission from Amnesty International. It is quite clear however that the Tribunal did not overlook the submission. It considered it. And indeed the Tribunal referred to it at page 755 of the Court Book.
As to the ninth ground; which is a claim that the Tribunal did not consider in its decision that the basic requirements of the Migration Act were fulfilled by the Applicant; there is no particularisation of that claim. I am not able to discern any failure by the Tribunal to comply with the requirements of the Migration Act.
As to the tenth ground; it is a claim for relief seeking an order in the nature of certiorari that the Tribunal decision should be quashed on the basis of factual errors. It also seeks mandamus so that the application could be returned to the Tribunal for:
Proper hearing taking into account the applicant's own circumstances.
In my view there is no basis for doing so. I am not satisfied that the Applicant has made out any jurisdictional error. I am mindful of the fact that the Applicant was not legally represented at the hearing although he has had obtained some legal advice. Nevertheless, I have considered the fact that he was not legally represented. I have examined the Tribunal decision in order to ascertain whether there was any arguable case for any other jurisdictional error. I have been unable to find any such evidence of any other jurisdictional error. It must follow that the application will be dismissed.
Before I do so, however, I propose to deal with one particular issue. The application and indeed the amended application named as the First Respondent, Ms Christine Long, in her capacity as a Member of the Refugee Review Tribunal. I have made clear at the time and indeed in other decisions, that an individual Member constituting the Refugee Review Tribunal should not be joined as a Respondent in an application for prerogative relief. In doing so I am applying the decision Re Ruddock; Ex parte Reyes (2000) 75 ALJR 465.
I also note that the title of the Second Respondent has changed from Minister for Immigration & Multicultural and Indigenous Affairs by removing the reference to indigenous affairs and I will make a formal order accordingly. In the meantime, however, I will hear submissions on costs.
There is an application for costs. The amount sought is $8,000.00 which is higher than the amount that the Court would normally award in matters of this nature. Nevertheless, it has been put to me by Mr Young for the Respondent Minister that this was a matter where the decision was of a considerable degree of complexity and indeed there was a significant amount of material that had been submitted. The Court book is approximately the same size as the general volume of the Sydney telephone book. It was necessary, it was submitted, to brief counsel and indeed counsel who was briefed is well-known for her expertise in the area of administrative law. In my view that was an appropriate decision.
This is a matter that was commenced before the 1st December 2005 and in all the circumstances I am satisfied that the amount of $8,000.00 which is sought is not unreasonable. I propose to make an order that the Applicant should pay the costs of the Respondent Minister in the sum of $8,000.00. I note that in this case the Tribunal was the First Respondent and the Minister was the Second Respondent and I have taken that into account in the orders. I make the following orders.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V. Lee
Date: 7 September 2006
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