SZAEU v Minister for Immigration - [2003] FMCA 413

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZAEU v MINISTER FOR IMMIGRATION

[2003] FMCA 413

MIGRATION – Review of decision of RRT – where applicant claims to be a member of youth wing of a political party – where involvement very limited – where applicant not physically attacked himself – whether there can be found serious harm under s 91R of Migration Act – where the Tribunal finds the applicant can return to his homeland without drawing the attention of anyone to himself.

Migration Act 1958 (Cth), s.91R(1)(b)
Judiciary Act 1903 (Cth), s.39B

Applicant:

SZAEU

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SZ 180 of 2003

Delivered on:

3 September 2003

Delivered at:

Sydney

Hearing date:

3 September 2003

Judgment of:

Raphael FM

REPRESENTATION

For the Applicant:

Applicant in person

Counsel for the Respondent:

Mr T Reilly

Solicitors for the Respondent:

Blake Dawson Waldron

ORDERS

Application dismissed.
Applicant to pay respondent’s costs in the sum of $4,250.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 180 of 2003

SZAEU

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The applicant is a citizen of Pakistan. He arrived in Australia as a visitor in November 1999, and on 15 December 1999 applied for a Protection (Class XA) Visa from the Department of Immigration & Multicultural Affairs. His application was considered by a delegate of the Minister who declined his application on 7 January 2000. The applicant then sought review from the Refugee Review Tribunal.
The Tribunal wrote to the applicant on 25 September 2002, advising him that it had considered the material before it in relation to his application but was unable to make a decision in his favour on that information alone. It invited the applicant to a hearing on 6 December 2002. The applicant attended the hearing. He was represented by a migration agent and solicitor. On 19 December 2002, the Tribunal came to its decision, which it handed down on 23 January 2003. The Tribunal affirmed the original decision of the delegate.
On 18 February 2003, the applicant filed an application for review of the decision of the Tribunal in this court. The grounds upon which the application was founded are as follows:
“1. Denial of natural justice by the DIMIA.
2.Tribunal did not consider my protection visa claim.”
The matter came before the Registrar of this court on 12 March 2003, when the applicant was ordered to file and serve any amended application and any evidence upon which he intended to rely on or before 27 June. The applicant was ordered to file and serve an outline of his submissions on or before 5 working days prior to the hearing. These orders were not complied with.
The basis upon which the applicant claims to have a well founded fear of persecution is said to be his membership of a movement known as ATI, which the applicant claims is connected with Jamaat-i-Islami. This is a political group. One would have assumed that the applicant's claim to have a well founded fear of persecution was for the convention reason of political opinion. However, it would appear that his representative pressed a claim that he belonged to a particular social group being a member of a political group which had been savagely attacked [CB 77]. It seems to me that as this social group is defined by the persecution which it is alleged to suffer under, it does not properly fall within the definition of a particular social group.
The applicant first alleged that he had been attacked by a group of supporters of another party known as NSF in about December 1996. He said that he was the subject of further attacks in March or April of 1997. He also said that he had been forced to join the ATI and that it was a group in which he had no interest personally. He said that he had joined the ATI to save himself [CB 78]. The Tribunal asked the applicant whether he had done anything at all by reason of being a member of the ATI and the applicant said that he had not [CB 78].
In the course of being questioned by the Tribunal, the applicant advised that he had run away from the attacks that he had described and that he had not been physically attacked himself [CB 79].
The Tribunal noted that the applicant had gone to live in the United Arab Emirates from the end of 1998 until 1999, although he had returned from there on a couple of occasions to his home in Pakistan. The applicant claimed that he had been under threat whilst in the UAE because of his known membership of ATI.
The Tribunal provided some background between [CB 81] and [83], of the situation in Pakistan, and referred to country information concerning the ATI Youth Group and the youth group MSF. At [84] in its findings and reasons, the Tribunal says:
“ However I consider that if the applicant had genuinely been a member of the ATI he would have at least known that it was the student wing of the Jamiat Ulema-i-Pakistan and that the Jamaat-i-Islami has its own student wing, the Islami Jamiat-e-Tulaba.

I do not accept that the applicant was a member of the ATI nor do I accept that he was threatened by reason of his being a member of the ATI, whether this is regarded as being a claim based on the Convention ground of membership of a ‘particular social group’, as the Applicant's representative suggested in his submission accompanying the Applicant's original application, or as being a claim based on the Convention ground of real or imputed political opinion.”
Later at [CB 85] the Tribunal says:
“Even if I were to accept the Applicant's claim that he was a member of the ATI, his involvement was, on the basis of his own evidence, very limited. He said that he did not do anything by reason of his being a member of the ATI. Likewise, even if I were to accept that the Applicant had friends who were members of the ATI, and who may have done something against the MSF, the Applicant's evidence is that he ran away on the only occasion on which he claims to have been attacked in company with his friends, and that he then remained in Pakistan, in Sialkot and Karachi and other places, for over 18 months before his first visit to the UAE.”
The Tribunal came to the conclusion that the applicant did not have a well founded fear of persecution for the convention reason of political opinion and that he was not exposed to persecution involving "serious harm” as required by paragraph 91R(1)(b) of the Migration Act 1958 (Cth) by reason of his claimed involvement in, or perceived association with, the ATI if he were to return to Pakistan now or in the reasonably foreseeable future.
When the matter came on before me for hearing, the applicant was self represented. He told me that when the verdict was given he didn't have a chance to explain his position. He said that he only answered, yes, or, no, to the Tribunal's questions and did not have an opportunity to explain his position.
No evidence was produced to this court of what occurred before the Tribunal although the applicant would have had a copy of the Tribunal tape. I do not think it appropriate to adjourn this matter for the tape to be obtained because it seemed to me from a reading of the Tribunal's carefully reasoned decision, that the Tribunal must have asked the applicant a number of questions and received answers that were more than a mere yes, or, no.
In response to Mr Reilly's submission the applicant told me that he was forced to join the organisation and that he was unable to give any detailed history of the organisation because he was not interested in it. I have no reason to believe that this is not correct. However, it gives yet another reason why the Tribunal was probably right in its conclusion that the applicant would not fear persecution if he returned to Pakistan.
The applicant is an unenthusiastic member of this organisation who had left Pakistan some 3 years ago and would, it seems to me, be unlikely to attract the attention of anyone upon his return.
In all the circumstances I am unable to find any reason to review this decision of the Tribunal under s.39B of the Judiciary Act 1903 (Cth).
I must, therefore, dismiss the application, which I do. I order that the applicant shall pay the respondent's costs, which I assess in the sum of $4,250.00 in accordance with Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: