SZCUW v Minister for Immigration
[2006] FMCA 563
•30 June 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZCUW v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 563 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming political and racial persecution in Pakistan – whether the RRT erred in requiring the harm claimed by the applicant to have a “systematic” quality considered – whether “misunderstandings” alleged by the applicant establishes jurisdictional error considered – whether, if error is established, relief should be refused in the exercise of discretion because of delay and the enactment of s.91R of the Migration Act 1958 (Cth) considered. |
| Migration Act 1958 (Cth), ss.54, 424, 424A, 474 Migration Legislation Amendment Act (No 1) 1998 (Cth) |
| Abebe v Commonwealth (1999) 197 CLR 510; [1999] HCA 14 Applicant A169 of 2003 v Minister for Immigration [2005] FCAFC 8 Chan Yee Kin v Minister for Immigration (1989) 169 CLR 379 Kioa v West (1985) 159 CLR 550 Macabenta v Minister for Immigration (1998) 159 ALR 465 Minister for Immigration v Haji Ibrahim (2000) 204 CLR 1 Minister for Immigration v SCAR [2003] FCAFC 126 Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 MZWBW v Minister for Immigration [2005] FCAFC 94 NAAP v Minister for Immigration [2003] FCAFC 76 Paul v Minister for Immigration [2001] FCA 1196 Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 Re Commonwealth of Australia v Marks (2000) 177 ALR 491 S58 of 2003 v Minister for Immigration [2004] FCAFC 283 S1747 of 2003 v Minister for Immigration [2005] FMCA 913 SZEEU v Minister for Immigration [2006] FCAFC 2 SZHJR v Minister for Immigration [2006] FCA 203 VAF v Minister for Immigration [2004] FCAFC 123 |
| Applicant: | SZCUW |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG500 of 2004 |
| Judgment of: | Driver FM |
| Hearing date: | 19 April 2006 |
| Date of last submission: | 30 May 2006 |
| Delivered at: | Sydney |
| Delivered on: | 30 June 2006 |
REPRESENTATION
| Counsel for the Applicant: | Mr B Zipser |
| Counsel for the Respondents: | Ms S Mason |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application is dismissed.
The applicant is to pay the first 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 |
SYG500 of 2004
| SZCUW |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
This is an application to review a decision of the Refugee Review Tribunal (“the RRT”) made on 15 December 1997. The decision was notified to the applicant by letter dated 16 December 1997. The RRT affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. I adopt the following background information from the Minister’s written submissions filed on 18 April 2006 and the applicant’s written submissions filed on 19 April 2006.
On 2 July 1992 the applicant, a 51 year old citizen of Pakistan, arrived in Australia (court book (“CB”) page 12).
In March 1996 the applicant applied for a protection visa. (CB 1-98) The application included:
a)two page statement from applicant setting out claims (CB 26-27);
b)seaman’s book dated 28 September 1971 (CB 70);
c)secondary school certificate dated 25 March 1974 (CB 70);
d)letter from Pakistan Muslim League Australia in support of applicant (CB 73);
e)letter from MQM Australia in support of applicant (CB 75); and
f)reference from Hotel Reliance dated 16 June 1991. (CB 76)
In July 1996 the applicant attended an interview by the Minister’s delegate. (CB 99)
On 22 July 1996 a delegate of the respondent refused the grant of a protection visa (CB 123 to 138). On 8 August 1996 the applicant applied for a review of the delegate’s decision by the RRT (CB 139 to 142).
On 30 October 1997 the applicant attended a RRT hearing at which he gave evidence (CB 399.1). On 16 December 1997 the RRT handed down a decision made on 15 December 1997 affirming the delegate’s decision not to grant a protection visa.
In November 1997 the RRT sent the applicant two letters under s.424 of the Migration Act 1958 (Cth) (“the Migration Act”) (CB 332-333 and 382)[1].
[1] At the time of the RRT’s decision s 424A of the Migration Act had not been enacted.
Between 24 October 1997 and 20 February 2004, the applicant pursued various class actions in including the Rosco class action in the Federal, Full Federal and High Court of Australia, and the Muin & Lie class action in the High Court of Australia (later remitted to the Federal Court of Australia where it concluded).
Following the conclusion of the Muin & Lie class action on 20 February 2004, the applicant thereafter commenced the present proceedings on 27 February 2004.
The RRT’s decision
The RRT:
a)found the applicant to be an unsatisfactory witness and made an adverse credibility finding in respect of his evidence (CB 417.2);
b)accepted that the applicant had joined the Mohajir Qaumi Movement (MQM) in 1985 but that he was only ever an ordinary member of MQM (CB 417.4);
c)did not accept the following claims of the applicant on the basis of its adverse credibility finding in respect of him:
i)that the applicant had been arrested on 26 February 1990;
ii)that the applicant had been in hiding from police from February 1990 to July 1992 when he came to Australia;
iii)the applicant’s account of his activities between his return to Pakistan on 9 May 1991 and his departure for Australia in July 1992 (although it accepted that he had been at sea between 20 June 1990 and 9 May 1991) (CB 418.7 to 418.9)
d)rejected a number of the applicant’s claims on the basis of inconsistencies between the applicant’s written claims (and departmental interview) and his oral evidence, together with instances of the applicant’s fresh claims at hearing which had been omitted from his protection visa application;[2]
e)found that the applicant was a member of the MQM who would continue to do work for that movement when he returned to Pakistan but did not accept that the applicant had held any office in the movement or that he had been arrested or that there was a First Information Report (FIR) outstanding against him. Accordingly the RRT did not accept that the applicant would be arrested, imprisoned or killed in a faked encounter when he returned (CB 425.6);
f)did not accept that the Pakistani government or its agencies were conducting an operation against members of MQM or that it encouraged, condoned or was powerless to prevent the murder of MQM members by a rival group (or that conflict between MQM and the rival group constituted persecution) (CB 425.8);
g)found accordingly that the applicant did not have a well-founded fear of persecution by reason of his involvement with MQM (CB 425.10);
h)in respect of the applicant’s claim to fear persecution in the form of racial discrimination there was nothing on the evidence before the RRT (nor had the applicant submitted) that he had suffered discrimination as a Mohajir in relation to either education or employment. Accordingly the RRT found the applicant not to have a well-founded fear of persecution in respect of the discrimination claim either (CB 426.1).
[2] The RRT did not err by this process as s.424A of the Act had not commenced. That section was inserted by Schedule 3 of the Migration Legislation Amendment Act (No 1) 1998 (Cth), which commenced on 1 June 1999. As the applicant before the RRT concluded prior to 1 June 1999 s.424A does not apply.
The judicial review application
These proceedings began with the judicial review application filed on 27 February 2004. The Minister filed a notice of objection to the competency of that application on 28 May 2004. On 13 September 2004 the applicant filed an amended application. On the same day he filed what purports to be an affidavit in support of that application. On 10 March 2006 the applicant also filed a document headed “Submissions” but which merely introduced two documents, apparently intended to support the applicant’s claims to be a refugee.
Up until the trial of this matter on 19 April 2006 the applicant was not legally represented. However, on that day, Mr Zipser appeared for the applicant on a direct access brief. I gave leave for the applicant to file in court an affidavit dealing with the issue of delay in bringing the present proceedings. The applicant was not required for cross‑examination on that affidavit. I also granted leave for the applicant to file and serve a further amended judicial review application by 21 April 2006. That application was filed on 27 April 2006 and raises the following grounds:
(1)The RRT found that the threat posed to the applicant as a member of the mainstream MQM as a result of the feuding between the mainstream MQM and the breakaway Haqiqi group did not come within the concept of persecution because “the intercine strife between the mainstream MQM and the breakaway Haqiqi group lacks the systematic quality that is inherent in the concept of persecution for the purposes of the Convention”. The RRT fell into jurisdictional error in making this finding.
(2)The RRT ignored evidence and documents submitted by the applicant to the RRT, giving rise to jurisdictional error. Specifically, the RRT ignored the following documents or evidence:
a)The RRT ignored the applicant’s evidence concerning inconsistencies in documents (see point 1 in the e-mail from the applicant dated 18 April 2006).
b)The RRT ignored the contents of a letter from the MQM International Secretariat dated 5 November 1996 (at CB 165) (see points 5 and 20 in e-mail from applicant dated 18 April 2006).
c)The RRT ignored the contents of a letter from the MQM Australia dated 23 November 1997 (at CB 391) (see points 5, 12, 17 and 20 in e-mail from applicant dated 18 April 2006).
d)The RRT ignored the applicant’s evidence that an FIR had been lodged against him (CB 420.2) (see point 11 in e-mail from applicant dated 18 April 2006).
e)The RRT ignored the evidence before it “that the Government agencies are presently mounting an operation against the MQM” (see CB 421.2) (see point 13 in e-mail from applicant dated 18 April 2006).
f)The RRT ignored the evidence before it “that the Haqiqi group continues to enjoy official patronage” (see CB 422.4) (see point 15 and 16 in e-mail from applicant dated 18 April 2006).
g)The RRT overlooked the relevance of the psychological report obtained on behalf of the applicant (see point 19 in e‑mail from applicant dated 18 April 2006).
h)The RRT ignored the evidence before it that, even if the applicant was an ordinary member of the MQM, “he faces a real chance of persecution on his return to Pakistan”. (CB 420.7) (see point 20 in e-mail from applicant dated 18 April 2006).
(3)The RRT ignored a country information document dated 8 November 1995 (see point 3 in e-mail from applicant dated 18 April 2006).
(4)The RRT failed to give the applicant an opportunity to comment on the following matters:
a)The RRT failed to put to the applicant its concern that “in his original application the applicant made no reference to any threat that he faced from the Haquiqi group”. (see CB 419.6) (see point 6 and 7 in e-mail from applicant dated 18 April 2006).
b)The RRT failed to put to the applicant its concern that “the applicant did not fear persecution either on his return to Pakistan from his voyage to Greece in 1990-91 or when he left Pakistan to come to Australia in 1992” (see CB 419.10) (see point 9 and 10 in e-mail from applicant dated 18 April 2006).
c)The RRT failed to put to the applicant its concern that the racial discrimination he claimed to suffer was not sufficiently severe to constitute persecution. (see point 21 in e-mail from applicant dated 18 April 2006).
The evidence
In addition to the applicant’s affidavit filed in court by leave on 19 April 2006 I have before me the court book filed on 2 July 2004.
Submissions
At the trial of this matter and in his initial written submissions Mr Zipser dealt with the following matters. First, Mr Zipser identified the following issues as arising:
a)The RRT found that the threat posed to the applicant as a member of the mainstream MQM as a result of the feuding between the mainstream MQM and the breakaway Haqiqi group did not come within the concept of persecution because “the intercine strife between the mainstream MQM and the breakaway Haqiqi group lacks the systematic quality that is inherent in the concept of persecution for the purposes of the Convention”. The RRT fell into jurisdictional error in making this finding. (“systematic quality issue”)
b)Attached to these submissions is an e-mail from the applicant dated 18 April 2006. In the e-mail the applicant sets out 22 misunderstandings by the RRT in its decision. An issue is whether any of these misunderstandings give rise to jurisdictional error. (“misunderstandings issue”)
c)There was a delay of six years between the date of the RRT’s decision in December 1997 and the date of commencement of these proceedings in February 2004. A question is whether the applicant’s delay provides a reason for refusing to grant him relief. (“delay issue”)
Mr Zipser made the following submissions in relation to the “systematic quality” issue:
The applicant claimed that there was feuding between the mainstream MQM and the Haqiqi group and he feared harm in connection with the feuding. The Tribunal “accepted that feuding continues between the mainstream MQM and the breakaway Haqiqi group”. (CB 422.3) However, despite this, the Tribunal found that the applicant did not have a well-founded fear of persecution. One reason the Tribunal found the applicant did not have a well-founded fear of persecution was as follows:
“I do not consider that the threat posed to the applicant as a member of the mainstream MQM by this type of feuding between the two political factions comes within the concept of persecution for the purposes of the Convention … I consider that the internecine strife between the mainstream MQM and the breakaway Haqiqi group lacks the systematic quality that is inherent in the concept of persecution for the purposes of the Convention.”
The Tribunal’s reference to “systematic quality” is contrary to principles stated in MIMA v Ibrahim (2000) 204 CLR 1. On this basis, the Tribunal fell into jurisdictional error.
I put to Mr Zipser that if the “systematic quality” issue was the only issue giving rise to jurisdictional error then a question would arise of whether relief should be withheld in the exercise of discretion. I said that that issue would arise because, since the decision of the High Court in Ibrahim the Migration Act had been amended to introduce s.91R and, on a re-hearing, the RRT would be required to apply that section.
Mr Zipser put, on instructions, that the presiding member had also made a number of mistakes or exhibited misunderstandings in the RRT decision. Mr Zipser identified these by reference to an e-mail to him from the applicant on 18 April 2006 and the court book. Mr Zipser noted that an issue would be whether these asserted mistakes or misunderstandings are merely disagreement with findings of fact by the presiding member or whether they give rise to jurisdictional error. Mr Zipser submitted that at least some of the asserted misunderstandings gave rise to an issue of procedural fairness on the basis that the applicant should have been given the opportunity to respond to concerns held by the presiding member about his claims.
Mr Zipser further submits that relief should not be withheld if jurisdictional error is established merely because of the delay in bringing the present proceedings. Mr Zipser points out that the applicant was engaged in other legal proceedings in respect of the same decision which the Minister has previously accepted would not be a bar to later proceedings. Mr Zipser submits that the applicant has not otherwise acted inconsistently with a claim for judicial relief.
I invited written submissions from the Minister by 12 May 2006. In her written submissions filed on 12 May 2006. Ms Mason relevantly submits as follows in relation to the grounds in the further amended application:
Ground 1
·This ground alleges that the RRT erred by finding that a systematic quality was necessary in order to constitute persecution for the purposes of the Convention.
·It is submitted on behalf of the applicant (paragraph [15] of the applicant’s written submissions dated 19 April 2006) that this finding was contrary to the principles stated in Minister for Immigration v Haji Ibrahim (2000) 204 CLR 1. In that case, McHugh J clarified his earlier comments in Chan Yee Kin v Minister for Immigration (1989) 169 CLR 379 as to what he had meant by the term “systematic”.
·Of course, the RRT decision in the instant case was made in 1997 and accordingly, predates the decision in Ibrahim. The respondent acknowledges however that Ibrahim now applies in respect of the instant case and is not saved by reference to s.91R of the Act, which did not apply at the time of RRT decision (although that does not affect the application of s.91R should the matter be remitted – see paragraph 9 below). This is a similar scenario to that which confronted Sackville J in SZHJR v Minister for Immigration [2006] FCA 203 at [26].
·The respondent submits that the reference to “strife” between MQM and a “breakaway” group is similar to the finding in SZHJR at [28] in that the RRT was attempting to convey that it was low level and was not of a kind which was significant enough to constitute persecution. This is consistent with the overall conclusion as to this issue (CB 425.8).
·However even if the RRT did make a mistake of law, that does not necessary mean it is a jurisdictional error: see SZHJR at [31]
·The respondent further submits that this is because there was a separate independent basis at CB 423.7 as to whether the Pakistani government was unable to provide protection in respect of the feuding.
·Even if the Court is not persuaded in that regard, the respondent respectfully adopts what [I said] in the course of hearing on 19 April 2006 that to remit the matter on the bases of an error in the approach to the definition of persecution (by requiring there to be a systematic quality) would be futile in any event as the RRT, newly constituted would be required to apply s.91R of the Act, which has codified the systematic requirement.
·Accordingly, the respondent submits that remission on an error of this kind would be a futile exercise.
Ground 2
·Ground 2 is now pleaded in more specific terms than was the basis of submission on the applicant’s behalf at hearing.
a)The applicant’s evidence concerning inconsistencies in documents by reference to point 1 in his email (which complains the RRT did not consider his explanation as to the discrepancies between reference documents and medical certificates). This allegation is not borne out by the RRT decision. In that decision. The relevant finding is at CB 417.2 which states:
“I have set out above under the heading “The Applicant’s evidence” the inconsistencies in the documents which the Applicant produced with his original application for which the Applicant was unable to offer any explanation. I have also set out his contradictory explanations with regard to the provenance of the reference from the Hotel Reliance…”
The explanations etc in question were set out at CB 403. A combination of those two parts of the RRT’s decision makes plain that the RRT did not “ignore” the evidence as to inconsistencies. It was just not persuaded by them. That is not an error.[3].
[3] The RRT did not err by considering inconsistencies etc without notice to the applicant pursuant to s.424A of the Act, as that section had not commenced. That section was inserted by Schedule 3 of the Migration Legislation Amendment Act (No 1) 1998 (Cth), which commenced on 1 June 1999. As the application before the RRT concluded prior to 1 June 1999 s.424A does not apply.
b)The RRT ignored the contentions of a letter from the MQM International Secretariat dated 5 November 1996 (email points 5 and 20). This ground makes reference to the letter at CB 165, whereas at hearing it was alleged on behalf of the applicant that the letter in question was that at CB 391 which was referred to at 420.6 where the RRT clearly had regard to the (CB 391) letter and used it to find that the applicant had been a worker with the MQM, just not an office holder. This conclusion was open to it.
The applicant now attempts to allege it is a different letter in question. The letter at CB 165 is addressed (in conjunction with the CB 391 letter) at CB 418.3. Accordingly, it was not ignored.
c)The RRT ignored the letter from MQM Australia dated 23 November 1997 (Email points 5, 12, 17 and 20). Again this ground cannot be made out. The letter in question is that referred to in the preceding sub-paragraph – namely the letter at CB 391. The RRT not only considered the letter, it made a number of findings in respect of in (see in particular CB 418). That the applicant is not pleased with those findings, is not indicative of jurisdictional error (although is largely indicative of an attempt to seek merits review). As stated above, the letter was considered and the RRT found the applicant to have been a worker with the MQM, just not an office holder. This conclusion was open to it. There is no error.
d)The RRT ignored the applicant’s evidence that an FIR had been lodged against him (CB 420.2 – email point 11). Again there is no basis to suggest the applicant’s evidence on this issue was ignored. Certainly the RRT did not accept the applicant’s evidence and did not find in the applicant’s favour in respect of the issue in question, but that is a different matter entirely from not considering, or ignoring, the evidence. At CB 420.2 it is clear that the applicant had made a fresh claim which he could not support and on that basis the RRT considered the claim to be a fabrication. That is an extremely orthodox finding of fact and one which, even if it is incorrect, is not a jurisdictional error: Even if that was so, such an incorrect finding is not sufficient, in and of itself, to constitute jurisdictional error: see MZWBWv Minister for Immigration [2005] FCAFC 94 at [28]; Applicant A169 of 2003 v Minister for Immigration [2005] FCAFC 8 at [31] per Finn, Marshall and Mansfield JJ and NAAP v Minister for Immigration [2003] FCAFC 76 at [37] per Gray, Moore and Weinberg JJ. Moreover, consideration of the fresh claim in contrast to it not having been made in the protection visa application is not an error by reason of s.424A: SZEEU v Minister for Immigration [2006] FCAFC 2 as s.424A had no application to the decision.
e)The RRT ignored evidence before it “that the government operation are presently mounting an operation against the MQM” (CB 421.2 – email point 13). Again, this is an attempt to agitate the merits of the RRT’s decision and to challenge factual findings open to the RRT. The RRT’s consideration of this issue occurs at CB 421.2 to 422.4. The conclusions of the RRT were open to it and there is no error present.
f)The RRT ignored the evidence before it “that the Haqiqi group continues to enjoy official patronage” (CB 422.4 – email points 15 and 16). The RRT’s conclusion in respect of the previous patronage enjoyed by the Haqiqi group, together with its subsequent finding that such patronage has waned was sourced from independent country information. Accordingly, any evidence before it that the patronage had not abated was not ignored, but rather the RRT preferred the independent country information before it on the issue.
g)The RRT overlooked the relevance of the psychological report obtained on behalf of the applicant (email point 19). At hearing on 19 April 2006, the applicant’s counsel conceded that this submission is not put to allege that the applicant was unfit for hearing by reason of the matters canvassed by the psychological report (by reference to Minister for Immigration v SCAR [2003] FCAFC 126), as these were not his instructions. Rather, he confirmed that the submission is merely put as to the manner in which the RRT treated the report in question from an evidential standpoint. At CB 425.4 the RRT states:
“Whilst, therefore I have had regard to Mr Dean’s professional opinion that the Applicant was suffering from ‘acute stress disorder’, I have found it of no assistance in determining whether the Applicant has a well-founded fear of being persecuted if he returns to Pakistan now or in the foreseeable future.”
The respondent submits that any criticism of the manner in which the RRT assessed the report in question is a merits challenge, having regard to the fact that the process in which the RRT was engaged was that of according weight to evidence. Weight is a matter which the RRT is perfectly entitled to do and the failure to accord weight to such evidence is not a matter which gives rise to jurisdictional error. As their Honours Gummow & Hayne JJ stated in Abebe v The Commonwealth (1999) 197 CLR 510; [1999] HCA 14 at [197]:
“In the end, the criticisms made by the applicant of the Tribunal's reasoning are criticisms of the factual findings it made and are criticisms that fasten upon the weight that the Tribunal attributed to various pieces of information that it had available for consideration. But what weight the Tribunal gave to those various pieces of information was for it to say.”
In Chand v Minister for Immigration (unreported, Full Federal Court, 7 November 1997) per Von Doussa, Moore and Sackville JJ, citing Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 at pages 281 to 282, said (at page 11):
“The RRT is required to evaluate all the evidence put before it by an applicant for refugee status. Where there is conflicting evidence from different sources, questions of credit of witnesses may have to be resolved. The RRT is also entitled to attribute greater weight to one piece of evidence as against another, and to act on its opinion that one version of the facts is more probable than another.”
The respondent submits that the RRT did not err.
h)The RRT ignored the evidence before it that, even if that applicant was an ordinary member of the MQM, “he faces a real chance of persecution on his return to Pakistan” (CB 420.7 – email point 20). The respondent again submits that this ground cannot be made out. It is implicit from the RRT’s finding at CB 420.8 that the RRT rejected the assertion that any membership of the MQM would result in the applicant being targeted when it said “Specifically I reject that his assertion that the only people who are being killed in Karachi are members of the MQM and the conclusion which he sought to draw from the article in the 15 June 1999 edition of Dawn…”.
In the respondent’s submission, all these findings were open to the RRT to make and no jurisdictional error is apparent.
Ground 3
·The respondent submits that the document in question is not present in the court book nor was it listed in the documents the applicant submitted to the RRT. Similarly, a document of that date and content is not present in the list of country information cited in the RRT’s decision (CB 427-428).
·The respondent accordingly submits that there is no evidence before the Court that the RRT had the document, let alone that it failed to consider same. The respondent reserves her right to make further submissions should this issue be at any way clarified or advanced by the applicant.
·Otherwise the respondent submits that the ground can simply not be made out owing to a total lack of evidence.
Ground 4
·Ground 4 alleges:
a)The RRT failed to put to the applicant its concern that “in his original application the applicant made no reference to any threat that he faced from the Haqiqi group” (CB 419.6, emails points 6, 7).
This ground of review cannot be made out. The respondent submits that the matter was not one which was required to be put to the applicant as it was not a matter of much significance to the decision: see (Kioa v West (1985) 159 CLR 550 at 629 per Brennan J). Moreover, the applicant cannot, in the absence of a transcript which has not been produced, satisfy this Honourable Court that the matter was not specifically put to the applicant. It would require the Court to draw an inference that it did not occur which should not, in the respondent’s submission occur, given the insignificance of the comment in question and the fact that the applicant has had ample time to inform the court specifically as to this matter.
b)The RRT failed to put to the applicant its concern that the applicant did not fear persecution either on his return to Pakistan from his voyage to Greece in 1990 to 1991 or when he left Pakistan to come to Australia in 1992 (CB 419.10 email points 9 and 10). This is again, a merits/factual challenge. The conclusion was open to the RRT on the evidence before it (which had come from the applicant) that he had come to Australia to pursue his studies and that he considered that the situation in Pakistan would improve before the time came for him to return, that he did not fear persecution at the times in question.
c)The RRT failed to put to the applicant its concern that the racial discrimination he claimed to suffer was not sufficiently severe to constitute persecution (email point 21). First that was not the finding of the RRT. The RRT made an overall assessment of the applicant’s alleged persecution. Moreover, the finding in question at CB 425.9 was that the evidence of the applicant in respect of racial discrimination did not indicate that the applicant had suffered discrimination in relation to employment and education. That was a factual conclusion of the RRT based upon the applicant’s own evidence. Again, it is an attempt by the applicant to agitate the merits of the claim.
Delay
· As foreshadowed by the respondent at hearing, the delay question in respect of discretionary relief remains extant. Whilst the respondent does not raise the time spent by the applicant in pursuing the Muin & Lie class action in the High Court of Australia (later remitted to the Federal Court of Australia where it concluded).
· Following the conclusion of the Muin & Lie class action on 20 February 2004, the applicant thereafter commenced the present proceedings on 27 February 2004. However, the respondent submits that the time spent pursuing the Rosco class action does constitute an excuse for a failure to bring review proceedings. That is because that class action did not relate to the applicant’s RRT decision: see S1747 of 2003 v Minister for Immigration [2005] FMCA 913 at [41]. Rather, it was a case where the point in question involved visa with separate criteria which were unrelated to the protection visa the subject of these proceedings (see Macabenta v Minister for Immigration (1998) 159 ALR 465).
· Accordingly the respondent submits that there is a period of delay, not covered by the existence of the Muin & Lie class action, for which no explanation has been given.
· Where an applicant’s delay was poorly or unsatisfactorily explained it was open to the Court to deny relief in the exercise of its discretion: S58 of 2003 v Minister for Immigration [2004] FCAFC 283. In S58 the period of delay was four years and 11 months. In Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491 per McHugh J at 495-496 and in particular at [17], the delay involved delay was of slightly over one year (the respondent acknowledges that the recent decision in SZHJR v Minister for Immigration [2006] FCA 203 disapproved of the reliance on Marks however the respondent submits that the disapproval was in the context of applying the approach in Marks, as opposed to nothing the Court’s comments as to the relative period of delay in question and accordingly the decision can still be used as a guide in respect of what period constitutes unwarrantable delay).
· The respondent submits that the delay in question is sufficiently significant, and the time spent during the Rosco class action to be sufficiently unpersuasive, to warrant this Court exercising its discretion to withhold relief.
Conclusion
· There being no jurisdictional error manifest, the decision is a privative clause decision for the purpose of s.474 of the Act: Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at [76] per Gaudron, McHugh, Gummow, Kirby & Hayne JJ.
I invited written submissions in reply from the applicant by 26 May 2006. In his written submissions in reply filed on 30 May 2006. Mr Zipser makes the following submissions:
·One matter for the Court to take into account in the exercise of its discretion whether to remit the matter to the RRT is that the time at which an applicant’s application for refugee status is to be assessed is the date of determination of the application by the decision-maker, which in the present case would be the date of decision of the RRT following the remittal: see Minister for Immigration v Singh (1997) 72 FCR 288.
·It is likely that the country situation in Pakistan has changed significantly between December 1997 (the date of decision of the RRT’s decision) and 2006. If the country situation has changed such that the “feuding between the mainstream MQM and the breakaway Haqiqi faction” (CB 423.3) is now systematic, a remittal of the matter to the RRT would not be futile.
·The Minister asserts that the Further Amended Application exceeds the scope of the grant of leave to file the Further Amended Application. If this is the case, which was not intended, the Further Amended Application should be read down to come within the scope of the grant of leave to file the Further Amended Application.
·In Singh v Minister for Immigration (2001) 109 FCR 152 at [59] Sackville J stated, in the context of considering s.54(1) of the Migration Act, that a decision-maker must have “realistic regard” to information he or she is required to consider, such that there is “an active intellectual process directed at the information”. It is possible for a decision-maker to refer to a document in its reasons for decision, but not have realistic regard to the document. Hence in NAJT vMinister for Immigration (2005) 147 FCR 51 at [212] Madgwick J (with whom Conti J agreed) stated:
Given the potential importance of the letter and the delegate’s fleeting, uncritical references to it in his reasons, in my view the inference should be drawn that the delegate did not actually consider what significance and weight it deserved. A decision-maker cannot be said to have regard to all of the information to hand when he or she is under a statutory obligation to do so, without at least really and genuinely giving it consideration. As Sackville J noticed in Singh v MIMA at [58] a ‘decision maker may be aware of information without paying any attention to it or giving it any consideration’. In my opinion, it would be very surprising if the delegate had genuinely paid attention to the letter and given it genuine consideration – had in Black CJ’s phrase in Tickner v Chapman engaged in an active intellectual process in relation to the letter – yet remained silent about such consideration in the reasons he gave. I am satisfied he did not do so.
·Where a decision-maker has a common law duty to have regard to documents submitted to it, there is no reason why the common law obligation should differ in degree to the statutory obligation.
·In the present case the applicant submits that in relation to:
a)the letter from the MQM International Secretariat dated 5 November 1996 (at CB 165); and
b)the letter from the MQM Australia dated 23 November 1997 (at CB 391),
while the RRT referred to these letters in its reasons for decision, it did not have realistic regard to these letters as required in the cases considered above.
·As to the discretion to withhold relief, subject to the point about onus noted by Sackville J in SZHJR vMinister for Immigration [2006] FCA 203 at [22] (ie the appropriate question is “whether the circumstances of the delay justified the withholding of relief in the event that the [applicant] established that the RRT had committed a jurisdictional error” and not whether the applicant can “satisfy the Court that a discretion should be exercised in his favour, having regard to the fact that the delay exceeded one year”), the applicant relies on the decision of Goldberg J in M162 of 2002 vMinister for Immigration [2003] FCA 1146. Two relevant points from this case are as follows:
a)It is relevant that the applicant was “at all times taking steps to enable [him] to remain in Australia”: M162 at [17] and [23].
b)It is relevant that “the procedural steps the applicant took [in relation to the Rosco class action] were taken and made upon legal advice”: M162 at [18] and [23].
Reasoning
Ground 2 may be dealt with shortly. I agree with, and adopt for the purposes of this judgment, the helpful submissions of Ms Mason in relation to ground 2 set out above at paragraph 19.
I also reject ground 3 for the reasons advanced by the Minister. The applicant has not presented evidence to support the assertion in ground 3.
In relation to ground 4, procedural fairness does not require that the RRT disclose its thinking processes to an applicant[4]. The matters advanced in relation to ground 4 all relate simply to the consideration by the RRT of the merits of the applicant’s claims. The RRT is not obliged to give a running commentary on its consideration of claims and no disclosure under the general law was required. In addition, in relation to particular (a), there is a lack of evidence to support the assertion of absence of disclosure at the hearing conducted by the RRT. The same objection might be taken to particulars (b) and (c) but in relation to particular (c) I also accept the Minister’s submission that the RRT finding is not accurately presented. The conclusions reached by the RRT in relation to these matters were open to it on the material before it and there is no demonstrated procedural unfairness in the consideration of those matters.
[4] Paul v Minister for Immigration [2001] FCA 1196 at [95]; VAF v Minister for Immigration [2004] FACFC 123 at [24]
The main issue in this case concerns ground 1 in the further amended application. The applicant asserts that the RRT erred in finding that “persecution” under the Convention requires a systemic quality to it. At page 397 of the court book the presiding member noted that it is not necessary for the purpose of establishing persecution that an applicant should be the victim of a series of acts. The presiding member referred to the judgment of McHugh J in Chan Yee Kin v Minister for Immigration (1989) 169 CLR 379 at 430, where His Honour said:
A single act of oppression may suffice. As long as the person is threatened with harm and that harm can be seen as part of a course of systematic conduct directed for a Convention reason against that person as an individual or as a member of a class, he or she is “being persecuted” for the purposes of the Convention.
The presiding member put this principle to use in dealing with the applicant’s claims at page 423 of the court book. The presiding member said:
The simple fact of the matter is that, as indicated in the material which I forwarded to the Applicant prior to the hearing, feuding between the mainstream MQM and the breakaway Haqiqi faction continues to be a problem in Karachi (Amir Zia, “Pakistan: Pakistan’s Rival Ethnic Factions Keep Karachi Tense”, Reuter Business Briefing, 18 May 1997). However I do not consider that the threat posed to the Applicant as a member of the mainstream MQM by this type of feuding between the two political factions comes within the concept of “persecution” for the purposes of the Convention. As McHugh J emphasised in Chan, referred to above, at 430, in order for the threatened harm to constitute “persecution” for the purposes of the Convention, it must be able to be seen a “part of a course of systematic conduct directed for a Convention reason against that person as an individual or as a member of a class”. I consider that the internecine strife between the mainstream MQM and the breakaway Haqiqi group lacks the systematic quality that is inherent in the concept of “persecution” for the purposes of the Convention.
The key to the resolution of this case is to analyse the presiding member’s reasoning in the passage above. The applicant asserts that the RRT erred in applying the principles set out by McHugh J in Chan, having regard to the clarification of that principle by McHugh J in Minister for Immigration v Haji Ibrahim (2000) 204 CLR 1 at [60]. His Honour said that his earlier statement in Chan suggests that a person is persecuted within the meaning of the Convention whenever the harm or threat of harm “can be seen as part of a course of systematic conduct … directed for a Convention reason against that person as an individual or as a member of a class”. His Honour continued:
Read literally, this statement goes too far. It would cover many forms of selective harassment or discrimination that fall short of persecution for the purpose of the Convention. Moreover, it does not go far enough, if it were to be read as implying that there can be no persecution unless systematic conduct is established.
Given the objects of the Convention, the harm or threat of harm will ordinarily be persecution only when it is done for a Convention reason and when it is so oppressive or recurrent that a person cannot be expected to tolerate it. This accords with the discussion of what constitutes a "well-founded fear of persecution" in par 42 of the Handbook On Procedures And Criteria For Determining Refugee Status [61] issued by the Office of the United Nations High Commissioner for Refugees…
Two things need to be clarified in relation to His Honour’s comments. The first is that the debate in Haji Ibrahim concerned the question of whether it was necessary for an applicant to establish a differential impact upon him or her of harm, over and above a broader group of persons, in order to establish a persecution. McHugh J was dissenting on that issue in finding that it was an error of law to decide that the applicant was not persecuted because he could not show that civil unrest had a differential impact on him or because the harm that he faced was merely an ordinary risk of clan warfare. Secondly, it is not clear what the presiding member meant when he said that the internecine strife between the mainstream MQM and the breakaway Haqiqi group lacked the systematic quality “that is inherent in the concept of persecution” for the purposes of the Convention. The question of whether the applicant needed to show a differential impact upon him of that internecine strife was not in issue in this case. What I think the presiding member meant, upon reading the relevant passage in the context of the reasons as a whole, is that the internecine strife within the MQM was sporadic and unpredictable and hence did not constitute persecution. Viewed in that light, the presiding member’s finding is not necessarily inconsistent with the clarification by McHugh J in Haji Ibrahim. The risk of harm may be so sporadic and unpredictable that it cannot be found to be so oppressive or recurrent that a person cannot be expected to tolerate it.
Sackville J considered this issue earlier this year in SZHJR v Minister for Immigration [2006] FCA 203. Sackville J reached a similar conclusion to me in relation to the first of three references to systematic conduct in that case at [27]. In addition, in this case as in SZHJR at [31] the decision is supported by an alternative finding, in this case that effective State protection was available in Pakistan to protect the applicant from the risk of harm posed by the internecine MQM strife, should it constitute persecution[5].
[5] court book, pages 423-424
I find that the decision of the RRT is free from jurisdictional error and is therefore a privative clause decision. Should I be wrong in that finding, I wish to make it clear that I accept Mr Zipser’s submission that, if there was a jurisdictional error in the RRT’s consideration of whether harm must be systematic to constitute persecution, it would not be futile to remit the matter to the RRT simply because of the enactment of s.91R(1)(c) of the Migration Act. It is possible that a differently constituted tribunal, looking at the matter today, might come to a different conclusion on the question of whether any continuing strife within the MQM constituted systematic and discriminatory conduct. Neither would I refuse relief in the exercise of discretion by reason of delay on the part of the applicant. I accept Mr Zipser’s submissions in reply on that issue. The applicant’s involvement in the Muin and Lie and Rosco class actions should not disentitle him to relief in this case if jurisdictional error had been established. The Rosco class action is not irrelevant to the consideration of delay. The applicant’s involvement was directed to his objective of being permitted to remain in Australia and, if he had succeeded, this proceeding would have been unnecessary.
I will order that the application be dismissed with costs fixed in the sum of $5,000.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 30 June 2006
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