S1834 of 2003 v Minister for Immigration
[2005] FMCA 61
•24 January 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| S1834 of 2003 v MINISTER FOR IMMIGRATION | [2005] FMCA 61 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of a decision by the Refugee Review Tribunal affirming a decision of a delegate of the Minister to refuse a protection visa to the applicant – applicant a citizen of Pakistan – where Refugee Review Tribunal did not find the applicant to be a credible witness – no reviewable error. |
| Applicant: | APPLICANT S1834 of 2003 |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INIGENOUS AFFAIRS |
| File No: | SYG 1387/2004 |
| Delivered on: | 24 January 2005 |
| Delivered at: | Sydney |
| Hearing date: | 24 January 2005 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| Solicitors for the Applicant: | In person |
| Counsel for the Respondent: | Ms Hartstein |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The Application is dismissed.
The Applicant is to pay the Respondent’s costs assessed in the sum of $5750.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1387 of 2004
| APPLICANT S1834 of 2003 |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
This is an application for review of a decision by the Refugee Review Tribunal which was handed down on 31 August 1999.
The applicant arrived in Australia as a visitor from his native Pakistan. Upon his arrival in Australia, he applied for a protection visa. He claimed that he feared persecution because he was a member of the Shia sect of the Islam religion. He said that he and two friends were attacked by supporters of an extremist sect of the Sunni branch of the Islam religion. He said that they reported the matter to the police but the police did not believe him. He said that the police wanted to charge him for murdering the leader of the Sunni group. He said that if he returned to Pakistan he would either be killed or would be convicted of a crime which he had not committed.
The Tribunal at page 74 of the court book reported that the applicant did in fact admit at the hearing to the murder of which he was accused. As a result, the Tribunal considered his evidence on that basis. At page 77 of the court book in the findings and reasons, the Tribunal said:
The applicant was not an impressive witness. His evidence was confused and inconsistent.
On page 78 of the court book at about point 5, the Tribunal goes on to say:
Having regard to the view I have formed of his credibility, I likewise do not accept that the applicant murdered the leader of the SSP in his area as he claimed. I consider that the FIR that he produced making this allegation against him was a fabrication. As I put to the applicant in the course of the hearing before me, I do not accept that he would have been able to obtain a passport if he had been facing a murder charge as he claims.
Again on page 78 of the court book, the Tribunal went on to say:
Furthermore, even if I were to accept that the applicant was facing a murder charge as he claims, I do not consider that this would bring him within the definition of a refugee.
Quite clearly this is a correct appreciation. If there is a law of general application and a person is accused of a breach of that law, then he cannot claim protection as a refugee. Certainly if a person comes to Australia claiming to be wanted for murder in his home country, he or she will not be able to use that as a basis in claiming refugee status.
When the matter came before the court for the first time on the 21st of December, the applicant told the court that he did not in fact admit to having murdered the man in Pakistan. I made the decision to adjourn the proceedings until today to allow the respondent's solicitor’s time to obtain a transcript of the proceedings before the Refugee Review Tribunal. That transcript has been obtained and is annexed to an affidavit dated 14 January 2005 of Anton Bockwinkel of the office of the Australian Government Solicitor. I admitted that transcript into evidence.
A perusal of the transcript shows that contrary to what the applicant told the court he did admit to the murder at the hearing of the Refugee Review Tribunal. At page 6 of the transcript at about point 9, the applicant is giving evidence through an interpreter. The Tribunal member asked him:
You said you were falsely accused of the murder of a Sunni leader?
The interpreter:
No.
The Tribunal member:
Okay. So you produced a first information report which you say was registered against you in respect of the murder?
Answer:
Yes, I did, yes, I did.
Question:
Well, are you saying to me that what's in that FIR is true or is that a false accusation?
Answer:
That is true.
Question:
Sorry, you didn't murder the Sunni leader?
Answer:
Yes.
Question:
I'll just ask you again to make sure that I've understood this correctly. You're saying that you did in fact murder the Sunni leader as is alleged in the FIR that you've produced?
Answer:
Yes, sir, that is correct.
On page 10 in the last two lines the applicant is reported as saying through the interpreter:
I don't know, if I'm forced to leave Australia indefinitely, I'll be placed in a situation where they will kill me or what else can they do?
On page 11 of the transcript at about point 5, the applicant is reported as saying:
As the Tribunal knows that I murdered someone in Pakistan so you'll not expect those peoples to leave me along.
Question:
What I would expect is that you would be arrested and that the courts would deal with you as they would with anyone else accused of murder.
Answer:
That is not certain.
Today the applicant gives a different account of what went on at the hearing of the Tribunal. He said yes, he had said "yes" when asked those questions but he said it was because he was sick, he did not understand so he just kept saying yes. I asked him why he would admit to murder and he said he did not understand what was going on, that he was sick and so he just said yes.
As Ms Hartsein of counsel has pointed to me, the applicant's account today is different from that which he gave on the last occasion. I am satisfied that there was no denial of natural justice and no bad faith on the part of the Tribunal at the hearing.
I am satisfied that the reason why the applicant's case was unsuccessful before the Refugee Review Tribunal was because the Tribunal member did not accept his evidence at all. The Tribunal said that he was not an impressive witness and did not believe his case.
Assessment of credibility of a witness is entirely a function of the Tribunal and the court will not grant a new hearing on the merits.
I would comment that the explanation the applicant has given me today is one which I do not accept and although the applicant has not given evidence on oath or affirmation, I say that his credibility in the proceedings before me is totally lacking.
It is quite clear from the transcript of the hearing that the Tribunal member went to great trouble to make sure that he understood what the applicant was saying. He asked him specifically to say whether or not he admitted to the murder for which he said he was wanted in Pakistan. The applicant's answers were quite clear.
The applicant has since told this court first that he did not admit to the murder which is clearly wrong and second that he made the admissions because he was sick and did not understand and just said "yes" to anything. I do not accept that either.
In 16 years on the bench in various courts, I have heard people give evidence which I did not accept and I have heard people make statements to a court which I did not accept. The applicant is in that latter category.
There is no reviewable error. The application will be dismissed and the applicant should be removed from Australia at the earliest available opportunity.
There is an application for costs before the court. The applicant has been highly unsuccessful in his claim. He says that he cannot afford to pay the amount sought by counsel for the Minister. However, that is not a ground in this jurisdiction for not making such an order. This is a matter where I shall make an order for costs as I consider it appropriate.
I propose to make an order for costs which I will set in a fixed sum. There are two matters which I consider to be most relevant in fixing the amount of costs. For a start, the applicant has been wholly unsuccessful in his claim. Second, the proceedings have had to be adjourned and additional work has had to be done because of matters raised by the applicant on the last occasion.
The proceedings before me today have indicated that what the applicant put to the court on the last occasion and today is not only incapable of being believed but has resulted in unnecessary delay and a waste of the court's time.
The applicant is to pay the respondent's costs in the sum of $5750.
I require a transcript of my reasons for this decision. The proceeding will be removed from the list of cases awaiting finalisation.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: A. Coutman
Date: 1 February 2005
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