SZAIQ v Minister for Immigration

[2004] FMCA 32

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZAIQ & ORS v MINISTER FOR IMMIGRATION [2004] FMCA 32

MIGRATION – Review of RRT decision – where applicant originally held valid student visa – where applicant chose to make written submissions rather than give oral evidence at RRT hearing – where Tribunal found that inconsistencies in applicant’s submissions impacted on the applicant’s credibility – where Tribunal was unable to make findings in relation to applicant’s political association due to lack of evidence – where amended application presented by the applicant was prepared by his “friends” – where applicant did not understand the content of the application – where certain submissions contained in the application are not evidenced by material in the court book – where applicant essentially seeking merits review.

Migration Act 1958 (Cth), s.426A

MIMIA v Jia [2001] HCA 17
SBBS v MIMIA [2002] FCAFC 361

Applicant: SZAIQ

Applicant: SZAIR

Applicant: SZAIS

Applicant: SZAIT

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SZ 523 of 2003

Delivered on: 15 January 2004

Delivered at: Sydney

Hearing date: 15 January 2004

Judgment of: Raphael FM

REPRESENTATION

For the Applicant: Applicant in person

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. For the purposes of these proceedings, Applicant SZAIQ (“the Applicant”) is appointed litigation guardian for the infant applicants; Applicant SZAIS and Applicant SZAIT.

2. No order for costs will be made against the infant applicants; Applicant SZAIS and Applicant SZAIT.

3. The application is dismissed.

4. The applicant is to pay the respondent’s costs fixed in the sum of $4,500.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 523 of 2003

SZAIQ & ORS

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. This is an application by a family of persons who are citizens of Pakistan.  In respect of the applicants SZAIQ and SZAIR they would appear to be adult and have capacity to bring these proceedings.  Insofar as the applicants SZAIS and SZAIT are concerned they would appear to be infants and so for the purposes of these proceedings I appoint their father applicant SZAIQ as their litigation guardian.  No order for costs will be made against them.

2. There are no individual claims in respect of applicants SZAIR, SZAIS or SZAIT that are not associated with the claims of applicant SZAIQ and I will therefore refer to him (as he was referred to by the Tribunal) as the applicant. 

3. The applicant first arrived in Australia on 18 June 1994. It appears that he had a valid student visa. He has remained in Australia ever since although he has departed from time to time and returned to Pakistan. His most recent arrival in Australia was 6 March 1998. On 18 April 2001 the applicant lodged an application for a protection (class XA) visa with the Department of Immigration and Multicultural Affairs under the Migration Act 1958. On 31 May 2001 a delegate of the Minister refused to grant protection visas and on 27 June 2001 the applicant applied for a review of that decision.

4. On 6 January 2003 the Tribunal wrote to the applicant advising that it had considered all the material relating to his application but was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 19 February 2003. On 4 February 2003 the applicant advised the Tribunal that he wanted to give oral evidence. However, on 18 February 2003 the applicant's adviser contacted the Tribunal by telephone and advised that the applicant was not going to attend the hearing. The applicant's adviser stated that he would be making submissions to the Tribunal which he asked to be taken into account. These submissions were received and the application was decided pursuant to the provisions of s.426A of the Migration Act 1958. 

5. The applicant claimed to have a well founded fear of persecution for the convention reason of political opinion because of his involvement with a political party known as the MQM (Altaf Group) which he joined when he was in college.  He claimed to have been a joint secretary of the group in his local area.  He claimed to have associations with local and national MQM leaders and he became close to one Altaf Aqssain, the central leader of the party.  The applicant became involve in political activity in 1987 and that included a peaceful procession in which members of the group have been attacked and supporters of the attackers have been injured.  The applicant alleged that a case had been filed against him accusing him of organising a violent procession against the State.

6. The applicant claimed that in August 1990 he had been arrested at his university residence, he was interrogated and beaten, however he was released with the assistance of well wishes and senior political leaders.  In December 1990 whilst at home but otherwise in hiding the applicant had been told by his mother to leave the country as soon as possible, this he did in 1994.  The applicant says that he will be persecuted if he returns to Pakistan. In his visits home since 1994 he has found the deteriorating political situation and has had to restrict his movements. 

7. At CB[78] the Tribunal deals with these submissions by the applicant and points out some inconsistencies which continue over to CB[79].  There are seven inconsistencies in all. As a result of those inconsistencies the Tribunal came to the conclusion at CB[79]:

   “Overall the problems with the applicant's evidence affect the credibility of his claims.  I am unable to make findings of fact as to whether the applicant was involved in MQM at all or whether he was ever of any adverse interest to the Pakistani authorities or to anyone else because of his political activities. I am also unable to make a finding as to whether the applicant would be involved in the MQM if he returned to Pakistan.  In the circumstances I cannot be satisfied that the applicant has a well founded fear of persecution for reasons of his political opinion.  The applicant has not claimed a fair persecution for any other convention reason and none is suggested on the evidence before me.”

8. The applicant appeared before me in person, he speaks excellent English and he provided me with an amended application which I have accepted as forming the basis of his application to the court.  This document is in a form which led me to ask the applicant whether or not it had been prepared for him by any person.  The applicant admitted that it had been prepared by "his friends" although he was adamant that he had not made any payment for it.  There are five amended grounds of the application.  The first was:

   “The RRT did not follow the proper procedure as required by the Migration Act 1958. Thus, the procedures that were required by the Act or regulations to be observed in connection with the making of the decision were not observed (Muin, Lee's case)[sic].”

9. The applicant told me that he did not know what Muin or Lee's cases were and he was unable to identify any procedures that he alleged were not followed.  I accept the submission by Mr White on behalf of the respondent that there was no evidential basis for the court to make out such a submission. 

   “ 2.  The RRT did not complete the exercise of its jurisdiction as it made no findings as to what sociopolitical changes might occur in Pakistan in the reasonably foreseeable future and it thus failed to assess whether the applicant's fear of being persecuted for being a member of a political party called MQM (Altaf Group) were well founded in the reasonably foreseeable future.”

10. The applicant in his submissions to me relied heavily on this ground.  He felt that the Tribunal had not advised itself about the situation in Pakistan and the possibility of persecution arising if he returned.  The difficulty that the applicant has in making this submission is that the Tribunal came to a conclusion that it was unable to make findings of fact as to whether the applicant was involved with MQM at all.  This being the case the Tribunal was not required to make any findings as to what might occur in the future provided that the Tribunal was entitled to come to the view which it did come to and did not come to it after the making of some jurisdictional error the decision must stand. 

    
    

    I accept the contention of the respondent that the lack of evidence was sufficient to enable the Tribunal to indicate that it was unable to attain the degree of satisfaction required by the Migration Act.

    “ 3.  The RRTs decision on 19 February 2003 was not based upon circumstances giving a rational foundation for the belief entertained as the RRTs findings, when applied to the applicable criteria, meant that the RRT should have been satisfied that the applicant had met those criteria.”

11. I asked the applicant what he felt this meant.  He was unable to tell me.  I do not know what it means.  The respondent's solicitor does not know what it means.  I do not see that one should be obliged to give judgment in relation to a paragraph which is as incomprehensible as this one is.

    “ 4.  The Tribunal did not provide the applicant with particulars of information which formed part of the reason of the Tribunal's decision, namely, that violence against MQM (Altaf Group) supporters/leaders had subsided and that information was not "just information about a class of persons.”

12. I asked the applicant whether he could identify for me anywhere in the court book that referred to violence against MQM supporters being subsided or that being part of the Tribunal's decision.  He was unable to assist me in this regard.  I have read the court book myself as has the solicitor for the respondent and neither of us are able to find such a reference.

    “ 5.  The Tribunal did not put to the applicant its doubts about documents containing information personal to the applicant from different sources of Pakistan, and those doubts form part of the reasons for the Tribunal's decision.”

13. The applicant did not attend the hearing.  It would have been impossible for the Tribunal to put such doubts to him if indeed it had indicated that it had them.  I have looked through the court book and I am unable to see any document which has information personal to the applicant other than his own statutory declaration and the submission from his migration agent which effectively repeats much of what has been said in the statutory declaration.

14. The applicant's oral submissions to me left me with the clear impression that his real claim was one that the Tribunal had not properly considered the merits of his application particularly insofar as they referred to the political situation in Pakistan.  This is clearly an invitation to a merits review and the court is not permitted to enter upon that territory.  

15. In his written submissions the applicant made an allegation of actual bias on the part of the Tribunal's job.  It has been made very clear by the Full Bench of the Federal Court in cases such as MIMIA v Jia [2001] HCA 17 that:

    “Bias in the form of pre-judgment occurs where the decision maker is so committed to a conclusion already formed as to be incapable of alteration whatever evidence or arguments may be presented.”

    In that case the High Court also said per Gleeson CJ and Gummow J [69] and Kirby J [127]:

    “A party asserting actual bias on the part of the decision maker carries a heavy onus.  The allegation must be distinctly made and clearly proved.”

16. Bona fides was dealt with seminally by the Full Bench of the Federal Court in SBBS v MIMIA [2002] FCAFC 361 where nine principles were set out. Whilst those principles do not need repeating here I am satisfied that the applicant has been unable in anything which he has produced to me orally or in writing to make any claim worthy of consideration that the Tribunal here acted in such a manner.

17. The application must therefore be dismissed. I order that it is dismissed and that the applicant pay the respondent's costs which I assess in the sum of $4,500 pursuant to Part 21 Rule 21.02(a) of the Federal Magistrates Courts Rules.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date: