SZCZV v Minister for Immigration
[2006] FMCA 471
•5 April 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZCZV v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 471 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming political persecution in Pakistan – no reviewable error found – application dismissed. |
| Migration Act 1958 (Cth), s.424A Migration Legislation Amendment Act (No.1) (Cth) 1998 |
| NAOA v Minister for Immigration [2004] FCAFC 241 SZEEU v Minister for Immigration [2006] FCAFC 2 WAGU v Minister for Immigration [2003] FCA 912 |
| Applicant: | SZCZV |
| First Respondent: Second Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG741 of 2004 |
| Judgment of: | Driver FM |
| Hearing date: | 5 April 2006 |
| Delivered at: | Sydney |
| Delivered on: | 5 April 2006 |
REPRESENTATION
The Applicant appeared in person
| Counsel for the Respondents: | Ms L Clegg |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The Court notes that the applicant’s current address for service is 555 Woodville Road, Guildford NSW 2161.
The Refugee Review Tribunal is joined as the second respondent to the application.
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 |
SYG741 of 2004
| SZCZV |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
REFUGEE REVIEW TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Refugee Review Tribunal (“the RRT”). The decision was handed down on 16 May 2000. The RRT affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. Relevant background facts are set out in the Minister's outline of written submissions filed on 27 March 2006. I adopt as background with minor amendments paragraphs 2 to 10 of those reasons for the purposes of this judgment:
The applicant, a citizen of Pakistan, arrived in Australia on 21 June 1997.[1]
[1] court book, page 15
On 19 June 1998 the Department of Immigration and Multicultural Affairs (Department) received an application for a protection visa from the applicant.[2]
[2] court book, page 2
On 29 June 1998 a delegate of the Minister refused the application for a protection visa. [3]
[3] court book, page 43
On 23 July 1998 the RRT received an application for review of the delegate’s decision.[4] On 2 February 2000 the RRT wrote to the applicant, advising him that it was unable to arrive at a decision in his favour on the material before it. The applicant was invited to attend a hearing and the applicant attended the hearing on 24 March 2000. [5] At the hearing the applicant’s solicitor furnished the RRT with submissions.[6] At the hearing the applicant also furnished the RRT with a number of documents said to support his case.[7]
[4] court book, page 53
[5] court book, pages 58, 60, 61
[6] court book, page 62
[7] court book, pages 69, 95
On 1 May 2000 the RRT made a decision, affirming the decision of the delegate.[8]
[8] court book, page 101
The applicant filed the application for judicial review on 16 March 2004[9], and an amended application on 31 December 2004.
[9] From 1 June 1999 the Migration Legislation Amendment Act (No. 1) 1998 (Act number 113 of 1998) by Schedule 3 of the Amendment Act, significantly amended the provisions of Division 4 of Part 7 of the Act relating to the conduct of a review by the RRT. The application to the RRT was made before the amendments commenced. However in this case the decision was made by the RRT after the amendments commenced. The transitional provisions provided that if a decision had not been made by the RRT the application was taken to have been filed on the commencement date. Accordingly the statutory framework is, for relevant purposes, the same as the existing statutory framework.
Applicant’s claims
The applicant set out his claim in an attachment to his protection visa application: court book, pages 25- 26. There is also a summary of the claim contained in a submission submitted by the applicant’s solicitor to the Tribunal: court book, page 62. The RRT also summarised the applicant’s claims at court book, pages 103 – 111. The applicant claimed:
a)he holds a bachelors degree and worked for a relative in a travel agency whilst he was a student in Lahore;
b)he joined the People’s Students Federation (PSF) in Lahore in 1989 and he has always supported the Pakistan Peoples Party with which the student organisation is involved;
c)during his college years he was actively involved in the PSF, and held executive positions;
d)there were always tensions between the PSF and the Muslim Student Federation (MSF), a more conservative and militant group;
e)as tensions increased toward the 1997 national elections, there was street violence between the MSF members and the PSF members;
f)the violence escalated and the MSF opened fire on PSF members. The MSF managed to get the police to issue informations and investigate PSF members, and warrants were issued for their arrest;
g)on 15 May 1997 the Deputy Commissioner of Lahore issued a warrant for his arrest, the applicant’s activities being considered dangerous and prejudicial to public safety;
h)he went into hiding in the mountains in North East Pakistan;
i)his brother was arrested by police and tortured;
j)in the 1997 elections the Muslim League won and formed government. The MSF became more intimidating and aggressive;
k)he decided there was no future for him in Lahore or Pakistan and with the help of family members paid and agent $5,000 to get a visa in his passport and a ticket to Australia; and
l)if he is returned to Pakistan he will not be protected because the police do not fulfil their role in a just manner. The charges against him are false and he will be arrested and charged again.
The RRT’s decision
The RRT:
a)noted a number of inconsistencies in the applicant’s evidence. The RRT gave examples of the inconsistencies, difficulties and unsatisfactory aspects of the applicant’s evidence;[10]
[10] court book, page 112
b)based upon these ‘fundamental’ unsatisfactory aspects of the applicant’s evidence, found the applicant was not a satisfactory or credible witness;[11]
[11] court book, page 113.6
c)was satisfied that the applicant was not President of the Lahore PSF;
d)it followed that the undated document attesting to the applicant’s Presidency of the Lahore PSF was fabricated. This gave rise to further apprehensions about the possible fabrication of the remaining documents which had been provided to the RRT by the applicant;[12]
e)noted the applicant’s inability to provide any details about his duties or activities as a PSF office bearer;
f)was satisfied the applicant was active in the PSF, but also found the applicant had deliberately embellished his involvement with the PSF;[13]
g)rejected as untrue the applicant’s belated claim that he had surrendered himself in February 1997;[14]
h)found that the applicant was not in hiding in mid January – June 1997 as he had claimed, and that he was not being sought by the police during this period;[15]
i)found that the 15 May 1997 detention order provided by the applicant was not genuine;
j)found that the applicant was not wanted by police or subject to a valid detention order when he left Pakistan;[16]
k)in the alternative, found that even if the 15 May 1997 document was genuine, there was not a real chance the applicant would be detained, arrested and subjected to treatment in Pakistan in relation to an order issued three years before by a different government which was overthrown in 1999;[17]
l)found that the applicant’s real concern about returning to Pakistan was that he had borrowed money which he had not repaid, which could be investigated. To the extent that the applicant might face Court charges in relation to this, it did not of itself amount to persecution for a Convention reason. The applicant would be provided a fair hearing by Pakistani Courts in this regard;[18] and
m)concluded the applicant was not a person to whom Australia has protection obligations.
[12] court book, page 113.8
[13] court book, page 113.9
[14] court book, page 114.5
[15] court book, page 114.5
[16] court book, page 114.8
[17] court book, page 115.1
[18] court book, pages 115.2 –116.3
The applicant relies upon his amended application filed on 31 December 2004. Nothing has been filed by way of evidence in support of the application. The only evidence before me is the court book filed on 21 July 2004. The applicant has not filed any written submissions.
The applicant did not wish to make any oral submissions other than to affirm the grounds set out in his amended application. The applicant also referred to the circumstances of his brother and his wife in Pakistan. He has expressed concern about events occurring since the RRT decision. Those are not matters relevant to my consideration of the validity of the RRT decision. They are matters that the Minister can take into account if she is so minded.
The amended application is formulaic in nature. Ms Clegg, on behalf of the Minister, deals with the amended application in paragraphs 11 to paragraph 25 of the Minister's written submissions. Paragraphs 26 to 29 of those submissions were not pressed. I agree with, and adopt with minor amendments the following from the Minister’s written submissions.
The amended application for judicial review
The amended application contains one ground of review, with five particulars. Each of the particulars purports to allege a ground of review. Accordingly, the Minister responds to each of the particulars as if they are separate grounds of review.
The first ground of review contains an amalgam of assertions, all of which essentially go to the merits of the RRT’s decision. To the extent that there is an allegation of bad faith on the part of the RRT, there is no basis for such an allegation, and it should not have been made.
The second ground also traverses the merits of the decision but goes on to complain that the applicant had no one to help him collect more documents to prove his case. Even if this were true, the applicant’s personal circumstances cannot found jurisdictional error on the part of the RRT. To the extent that this ground suggests there is a duty on the RRT to investigate the applicant’s claims on his behalf, this has no basis. It is well settled that the RRT has no such duty.
The third ground alleges the RRT engaged in irrational or illogical reasoning. There is considerable doubt as to whether irrationality or illogically is available as a separate ground of judicial review in Australian courts. However, the Court need not resolve this question, as the proposition that the reasoning of the RRT is infected with irrationality or illogicality is unsupportable. There is nothing contained in the RRT’s decision which suggests anything of the kind. On the contrary, the decision comprehensive and well reasoned.
The fourth and fifth grounds allege the Migration Act 1958 (Cth) was not observed. No meaningful particulars have been provided. In the absence of particulars the ground is not established.
For completeness the Minister raises the following matters as warranting the Court’s consideration.
Documents provided by the applicant: s.424A and natural justice issues
In the fifth ground of review the applicant complains about the way in which the RRT dealt with the documents he provided to the RRT.
Statutory obligations were discharged
As the documents were provided by the applicant to the RRT at the hearing, no issue of the kind addressed in SZEEU v Minister for Immigration [2006] FCAFC 2 arises. That is because the documents were provided to the RRT by the applicant ‘for the purpose of the application’, and therefore fall within the exception contained in s.424A(3)(b).
Common law obligations were discharged
The RRT discharged any common law obligation of procedural fairness it might have had because it discussed the substance of its concerns about the genuineness of the documents with the applicant: 109.4, 109.5,109.7, 110.5, 112.8.[19]
[19] To the extent that there are gaps which suggest on the face of the decision that some of the documents were not specifically discussed with the applicant, first there is no evidentiary basis to establish that particular documents were not discussed: NAOA v Minister for Immigration [2004] FCAFC 241 at [21]. Second, the RRT is not required to put its thoughts about every document to the applicant. It is sufficient for it to have suggested to the applicant that all of the documents are fabricated: see court book, page 109.4
Further, and in any event, as French J observed in WAGU v Minister for Immigration [2003] FCA 912 at [36]:
Corroborative evidence may be rejected as of no weight because it is dependent upon and can be shown to be undermined by findings as to the tendering party's credibility. In such a case a failure to put to the tendering party that the evidence may be so regarded cannot constitute a breach of procedural fairness. This is just a special case of the general proposition that procedural fairness does not require the decision-maker, in this case the Tribunal, to invite comment upon its thought processes on the way to its decision.
This is a case where the RRT made adverse credibility findings against the applicant on the basis of the claims he made at the hearing - and independently of the documents provided by the applicant to the RRT: see court book, pages 112, 113.6, 113.7. The RRT had rejected the applicant’s credibility before it came to consider the documents. The authenticity of the documents was not a critical step in the reasoning of the RRT, and any failure by the RRT to put its views about the documents to the applicant could not have operated to deprive the applicant of procedural fairness.
SZEEU issue
The RRT referred in its decision to the fact that the applicant was able to depart Lahore airport on his own passport (the ‘passport information’): court book, pages 114.8 – 114.8. It is unclear how the RRT came upon this information. It is possible it was obtained from information on the passport itself or from the answers to questions 25, 41, 42 and 43 of the Form C – Application for a Protection Visa.
If it could be said that the passport information was ‘the reason or part of the reason’ for affirming the decision under review, it would have required the RRT to furnish the applicant with a s.424A(1) notice in writing: see SZEEU v Minister for Immigration [2006] FCAFC 2.
However, there are two reasons why the applicant’s judicial review application cannot succeed in this respect. First, there is no evidentiary basis before the Court as to how the RRT came upon this information: NAOA v Minister for Immigration [2004] FCAFC 241 at [21]. There was a discussion between the applicant and the RRT about the circumstances of the applicant’s exit during the hearing: court book, page 108.9. It is possible the applicant told the RRT he departed Lahore on a passport in his own name during this dialogue. The applicant must establish from an evidentiary viewpoint that the passport information was information which would be the reason or part of the reason for the decision, and that it does not come within one of the exceptions in s.424A(3). He has not done so.
Secondly, and in any event, the RRT provided an alternative reason or basis for the decision independent of any jurisdictional error which might be gleaned from the RRT’s reasoning about the passport information. In this case the RRT reasoned that even if the 15 May 1997 detention order was genuine and the applicant was the subject of a detention order, it was not satisfied that this would give rise to a real chance that the applicant would be detained, arrested and subjected to treatment amounting to persecution by authorities in circumstances where the government which had issued the detention order three years prior had been overthrown by the (then) existing 1999 Government. This provides an alternative basis for withholding relief: see SZEEU per Allsop J at [231] – [233]. This part of the RRT’s reasoning is not infected with a failure to afford procedural fairness or with any failure to comply with the procedural requirements of the Act: per Allsop J at [213].
In my view, the decision of the RRT is a privative clause decision and the application for judicial review must therefore be dismissed.
I will order first, that the Refugee Review Tribunal be joined as the second respondent to the application and secondly, that the application be dismissed.
The application having been dismissed, costs should follow the event. The Minister's actual costs are in the vicinity of $6,000 which I understand does not include counsel's fees. Counsel's fees are in the order of $1,000. Having regard to the amount of preparation required of the Minister, I am satisfied that a proper party/party assessment would be $5,000. The applicant is concerned about his ability to pay costs but as has been repeatedly stated that is not a reason for the Court to refrain from making a costs order.
I will order that the applicant pay the first respondent's costs and disbursements of and incidental to the application, which I fix in the sum of $5,000.
I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 11 April 2006
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