S406 of 2003 v Minister for Immigration
[2006] FMCA 333
•22 February 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| S406 of 2003 v MINISTER FOR IMMIGRATION & ORS | [2006] FMCA 333 |
| MIGRATION – Review of decision of RRT – where applicant makes claims about Tribunal conduct of proceedings but does not produce a transcript or tape. PRACTICE & PROCEDURE – Matter remitted from High Court to Federal Court to FMC – whether to hear matter on Order Nisi basis or on final basis. |
| Applicant 370 of 2002 v Minister for Immigration [2004] FMCA 581 Murugasu v Minister for Immigration (1987) 217 ALR 17 |
| Applicant: | APPLICANT S406 OF 2003 |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL |
| Third Respondent: | KERRY ANNE HARTMAN, MEMBER OF THE REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG2290 of 2005 |
| Judgment of: | Raphael FM |
| Hearing date: | 22 February 2006 |
| Date of Last Submission: | 22 February 2006 |
| Delivered at: | Sydney |
| Delivered on: | 22 February 2006 |
REPRESENTATION
| For the Applicant: | Applicant in person |
| Counsel for the Respondent: | Mr J Potts |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
Application dismissed.
Applicant to pay the respondent’s costs assessed in the sum of $4,000.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2290 of 2005
| APPLICANT S406 OF 2003 |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL |
Second Respondent
| KERRY ANNE HARTMAN, MEMBER OF THE REFUGEE REVIEW TRIBUNAL |
Third Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of Pakistan. He arrived in Australia on 1 January 1997. On 17 March 1997 he lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs. On 30 June 1997 a delegate of the Minister refused to grant a protection visa and on 31 July 1997 the applicant sought review of that decision. The Tribunal invited the applicant to a hearing which he attended. On 20 April 1998 the Tribunal determined to affirm the decision not to grant a protection visa.
On 16 July 1999 the applicant joined the Muin and Lie class action. His involvement in that action ceased on 20 June 2003. On 5 July 2003 he sought an order in respect of the decision of the Refugee Review Tribunal from the High Court. On 12 January 2004 Kirby J made orders remitting the matter to the Federal Court of Australia. On 10 December 2004 the applicant filed an amended application and applicant's submissions. On 5 August 2005 Emmett J made an order transferring the matter to this court.
The first issue I have to consider is whether this proceeding should be dealt with on a final basis or on some preliminary basis of the type found in the High Court rules for consideration of orders nisi. I am assisted in my decision to deal with this matter on a final basis by the view of her Honour Barnes FM in Applicant 370 of 2002 v Minister for Immigration [2004] FMCA 581 where a similar issue came before her and she explained why she believed the matter was properly dealt with on a final basis: see [1-4].
The applicant's claim to have a well-founded fear of persecution for the convention reason of political opinion arose out of his membership of the Pakistan Peoples Party which he told the Tribunal he had joined when he was in college in 1979. He also stated that between 1979 and 1996 he was not actively involved in the party although he had a low level of activity attending meetings, putting up posters and attending to the physical needs of his local area. The applicant claimed to have become more involved in the party in early 1997, but when the Tribunal pointed out to him that he had arrived in Australia on 1 January 1997 he resiled from that evidence and said that his more serious involvement had commenced in about October or November 1996.
The applicant claimed to have fallen foul of the local member for his area who was elected in the interests of another party. The applicant claimed that this person had discovered that he had been enlisted to work for the PPP candidate and he, the applicant, believed that this politician had arranged for him to be beaten up when he was walking home from the hotel which he owned. The applicant also claimed to have received further threats from this quarter and two of his friends had been murdered. The applicant produced to the Tribunal an untranslated first information report concerning charges that he believed would be laid against him.
In its findings and reasons the Tribunal found that the applicant was an unsatisfactory witness who was unable to give a satisfactory explanation of the aims of the PPP nor did he satisfactorily explain why he had become more politically involved with that party in late 1996. The Tribunal took the view that the applicant's statements were so exaggerated as to be implausible and could not accept the alleged antipathy between himself and the local member. Because the Tribunal did not accept the applicant's involvement with the PPP it did not accept that he was physically attacked or had received threats upon his life. At [CB 69] the Tribunal says:
“These exaggerated claims are inconsistent with the independent information set out above that states that there is no evidence of any officially sanctioned use by the PML(N) of the security forces against political opponents.”
At [CB 70] the Tribunal says:
“Even if the Tribunal was to accept that the applicant was a member of the PPP the applicant's description of his activities in the party were so low key that the Tribunal finds that the applicant's fear of persecution is not well founded. The Tribunal also accepts independent information set out above that indicates that PPP members have no reason to fear retribution from the PML(N) who are now in government nationally. There has been no evidence of any officially sanctioned use by the PML(N) of the security forces against its political opponents. The Tribunal finds there is no real chance that the applicant will be persecuted upon his return to Pakistan.”
The applicant had stated that he claimed to fear returning to Pakistan because "anyone can murder anyone in Pakistan." The Tribunal dealt with this matter by reference to Murugasu v Minister for Immigration (1987) 217 ALR 17 at [23].
On 10 December 2004 the applicant filed an amended application containing five grounds of review. The first ground was that the Tribunal misunderstood the applicant's claim and made a jurisdictional error by applying the principles from Murugasu. He complained that the Tribunal misunderstood his claims because what he meant by the introduction of this evidence was whilst even a normal person was not safe in Pakistan and capable of being murdered, a member of the PPP was even more unsafe.
The Tribunal's view was that the claim that anyone could be murdered in Pakistan was not a claim that demonstrated persecution in the Convention sense. In the absence of a transcript I would have to find that the applicant did not articulate his claim before the Tribunal in the way that he has articulated it in his grounds of review, but even if he had done so the Tribunal found that he was not a member of the PPP and therefore the dangers that may have been present for such a person would not apply to him. Again, the Tribunal argued that if the applicant had been a member of the PPP he was at a very low level and by analogy the Tribunal would have considered that there was little prospect of that encouraging a risk of being murdered. I cannot see any error in the way in which the Tribunal dealt with the claim or in its reference to the decision in Murugasu.
The second ground of review claimed that the Tribunal was "Wednesbury unreasonable" in how it dealt with the issue of the FIR. The Tribunal had applied certain independent country information to its consideration of this first incident report. It discussed that information with the applicant and it believed that the applicant had accepted that the FIR did not constitute charges brought against the applicant but only claims upon which investigations might take place. The Tribunal indicated that in its view the applicant had abandoned this claim, [CB 66]. In the absence of a transcript I must accept that this is what occurred.
The third ground of review was that the Tribunal made credibility findings against the applicant based upon something said by the applicant that was taken literally by the Tribunal and used out of context. This complaint refers to the Tribunal's finding that the applicant's description of his political opponent "as so powerful that he can do anything" was so exaggerated as to be implausible. This is a finding of credibility which is entirely within the responsibility of the Tribunal. It is a finding of fact with which this court cannot interfere. To the extent that the written submissions suggest that the Tribunal was engaged in an attempt to find anything to use against the applicant to deny him a refugee visa this is an allegation of bias against the member which cannot be justified on the basis of a reading of the Tribunal's decision.
Fourthly, the applicant claims that the Tribunal did not deal with important claims that he made, in particular that he was stopped by "gundas" and was attacked by armed persons, as well as his claim that political opponents have attacked his house twice and threatened his parents and family members. These matters are specifically referred to by the Tribunal at [CB 63] and the Tribunal made a finding at [CB 69] that the applicant was not physically attacked. There can be no valid complaint that the Tribunal did not deal with these matters and therefore failed to take into account all the integers of the applicant's claims.
The fifth ground of review was that the Tribunal unreasonably (in the Wednesbury sense) held that the applicant was not a member of the PPP. This is a finding of fact by the Tribunal based upon the evidence given to it by the applicant in his written statements and in the oral communication between the Tribunal and the applicant at the hearing. It is a matter particularly within the responsibility of the Tribunal and any attack upon that finding is an attempt to obtain merits review from the court.
Before me today the applicant said that the Tribunal was not aware of the situation in Pakistan and how powerful the "opposition party" was. I presume the applicant meant by the opposition party the party in opposition to the PPP. The applicant also told me that whilst he was not playing a big role in the PPP he was threatened a lot whilst working for that party. He said that his political opponents had destroyed his business and he feared to return to Pakistan.
This application to the Tribunal was made long before s.424A found its way into the statute books and long before s.422B appeared. I am quite satisfied from my review of the court book that the Tribunal did not fail to provide the applicant with procedural fairness and without a transcript, which the applicant has not provided, there is no other evidence that the Tribunal acted anything but properly in putting to the applicant all matters that might lead it to find that it was unable to be satisfied that the applicant had a well-founded fear of persecution for a Convention reason.
It seems to me therefore, that the decision which is impugned was, as described by Mr Potts, a "routine determination on a factual basis". The applicant has failed to convince me that any jurisdictional errors were made in coming to the conclusion that was reached by the Tribunal and I would therefore dismiss the application and order that the applicant pay the respondent's costs which I assess in the sum of $4,000.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Raphael FM
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