SZAEM v Minister for Immigration
[2003] FMCA 368
•27 August 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZAEM & ORS v MINISTER FOR IMMIGRATION | [2003] FMCA 368 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicants claiming political and religious persecution in Pakistan – no reviewable error found. |
Migration Act 1958 (Cth), ss.417, 474
Abebe v Commonwealth (1999) 197 CLR 510
Chan v Minister for Immigration (1989) 169 CLR 379
Kopalapillai v Minister for Immigration (1998) 86 FCR 547
Linett v McIntyre (2002) 117 FCR 189
Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259
Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24
Re Minister for Immigration; ex parte Applicant S20/2002 (2003) 198 ALR 59
Re Minister for Immigration; ex parte Durairajasingham (2000) 168 ALR 407
Re Minister for Immigration; ex parte Lam (2003) 195 ALR 502
W148/00A v Minister for Immigration (2001) 185 ALR 703
| First Applicant: Second Applicant: | SZAEM SZAEN |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDGENOUS AFFAIRS |
| File No: | SZ172 of 2003 |
| Delivered on: | 27 August 2003 |
| Delivered at: | Sydney |
| Hearing date: | 27 August 2003 |
| Judgment of: | Driver FM |
REPRESENTATION
The applicants appeared in person
| Counsel for the Respondent: | Mr T Reilly |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The application is dismissed.
SZAEM and SZAEN are to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ172 of 2003
| SZAEM, SZAEN, SZAEO, SZAEP, SZAEQ |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Refugee Review Tribunal (“the RRT”) made on 20 December 2002 and handed down on 23 January 2003. The RRT affirmed a decision of the delegate of the Minister not to grant protection visas to the applicants. There are five applicants, a husband, a wife and their three children. The claims of the children are made through their parents. The husband and the wife made claims of political and religious persecution in Pakistan. The applicants failed essentially because their claims were not believed by the RRT.
The RRT accepted that the applicants are Shi’ite Muslims and that they have been supporters of the Pakistan People's Party. However, the RRT did not accept that the applicants faced any significant risk of persecution in Pakistan because of their religion or political affiliation. The RRT rejected evidence of harm that the applicants said they had suffered in Pakistan and Dubai previously as not credible. The RRT accepted that there is religious communal violence in Pakistan, but found that the risk this violence posed to the applicants was no greater than the risk posed to anyone in Pakistan.
The RRT also found that the applicants did not face a risk of persecution by reason of their support for the Pakistan People's Party. In their application and supporting submissions, the applicants take issue with the factual findings made by the RRT. They are dissatisfied with the decision of the RRT and sought to make submissions to me about the situation which exists in Pakistan. However, as I explained to the applicants, those submissions go to the merits of the RRT decision and not its legality.
The applicants also believed that their claims should have been accepted by the RRT. They are concerned about the credibility findings made against them by the RRT. However, in my view, the findings of fact made by the RRT and its credibility findings were reasonably open to it on the material before it.
Mr Reilly, for the Minister, relies upon written submissions filed on 22 August 2003. I agree with and accept those written submissions.
I adopt them for the purposes of this judgment:
On 22 January 2003 the RRT handed down a decision affirming a decision of a delegate of the respondent to refuse to grant the applicants protection visa. The first applicant will be referred to henceforth as “the applicant”.
The applicant applied for the visa on 7 April 2000. The delegate’s decision refusing the visa was made on 31 August 2000. The applicant applied to the RRT for review of the delegate’s decision on 28 September 2000. The RRT held a hearing on 3 December 2002.
The applicant claimed to fear persecution for reason of his political opinion and religion in Pakistan. He claimed to be a Shi’a Moslem and to have been threatened by rival Sunni Moslem members of the Sipah-i-Sahaba Pakistan (SSP) in 1984, and that his house in Islamabad was fired at by SSP members in 1998. The applicant also claimed to be a former member of the Tehrik-i-Jaffaria Pakistan (TJP) and a current member of the Pakistan Peoples Party (PPP), and to fear persecution for this reason.
The RRT found that the applicant (and his wife) were not credible and had exaggerated or fabricated their claims (and some documents) in an effort to create a refugee profile. The RRT rejected the applicant’s claim to have been threatened in 1984 by the SSP as implausible, noting that the applicant had returned to Pakistan from Dubai many times thereafter. The RRT also rejected the applicant’s claim that his house was attacked in 1998, noting that he and his wife had given different accounts of this claim. Nor did the RRT accept that the applicant was ever a member of the TJP, noting the applicant’s lack of knowledge concerning it. Further the RRT noted that even if the applicant had been attacked in Pakistan as he claimed, it was not satisfied on the basis of independent country information that the applicant’s fear of persecution in Pakistan because of his Shi’a religion would be well founded as at the date of the RRT’s decision. Finally, while the RRT accepted that the applicant and his wife were PPP supporters, it noted that there was no evidence to suggest that PPP supporters were at risk or persecution in Pakistan.
It is apparent that the applicant was unsuccessful because of the view the RRT took of the facts, in particular its finding that the applicant and his wife were not credible and had fabricated their claims. Such findings are matters of fact for the RRT par excellence: Re Minister for Immigration; ex parte Durairajasingham (2000) 168 ALR 407 (HCA/McHugh J) at [67]. So long as the RRT’s credibility findings were open to it, no error is demonstrated in such conclusions: Kopalapillai v Minister for Immigration (1998) 86 FCR 547 (FC) at 558-559; W148/00A v Minister for Immigration (2001) 185 ALR 703 (FCA/FC) at [64-69] per Tamberlin and R D Nicholson JJ. The RRT’s findings were open for the reasons it gives, including the independent country information to which the RRT refers. It is unlikely that a State party is expected to grant refugee status to a person whose account, although plausible and coherent, was inconsistent with the State’s understanding of conditions in his or her country of nationality: Chan v Minister for Immigration (1989) 169 CLR 379 at 428 per McHugh J (although here the RRT has not found the applicant’s claims to be “plausible and coherent”).
The application does not identify any error in the RRT’s decision and appears to seek merits review. However the Court cannot review the merits of the RRT’s decision: Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 at 272, and there is no error of law, let alone a jurisdictional error, in the RRT making a wrong finding of fact: Abebe v Commonwealth (1999) 197 CLR 510 at [137].
As there is no arguable jurisdictional error in the RRT’s decision, it is strictly unnecessary to discuss the effect of s.474 of the Migration Act 1958 (Cth) (“the Migration Act”) or Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24. However the distinction between jurisdictional and non-jurisdictional errors remains: Linett v McIntyre (2002) 117 FCR 189 (FC) at [5], [30-35], [86-87]; Re Minister for Immigration; ex parte Lam (2003) 195 ALR 502 at [77]; Re Minister for Immigration; ex parte Applicant S20/2002 (2003) 198 ALR 59 at [59]. The RRT was plainly addressing the right question, and the Applicant’s complaints can at most concern the weight given to evidence before it, which cannot be a jurisdictional error: Linett.
The applicants have not been able to demonstrate any error of law going to the jurisdiction of the RRT.
As matters transpired during argument, it appears that the applicants wish their situation to be considered on humanitarian grounds. It is open to them to request that the Minister consider exercising his power to intervene under s.417 of the Migration Act. That is beyond the scope of these proceedings. No jurisdictional error having been found in the decision of the RRT, I must dismiss the application.
On the question of costs, the applicants having been wholly unsuccessful and the Minister wholly successful, it is appropriate that I make an order for costs consistent with the general principle that costs follow the event. Mr Reilly tells me that the costs incurred on behalf of the Minister on a solicitor and client basis are $5,200.
The applicants submit that they would have difficulty paying costs of that order. Impecuniosity is, however, not a reason to refrain from making a costs order. On a party/party basis an appropriate order for costs would be $4,000. I will order that the application is dismissed and that the first and second applicants pay the Minister's costs and disbursements of an incidental to the application, which I fix in the sum of $4,000.
I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 5 September 2003
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