SZDBY v Minister for Immigration - [2004] FMCA 482

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDBY v MINISTER FOR IMMIGRATION

[2004] FMCA 482

MIGRATION – Review of RRT decision – where applicant claimed to have a well-founded fear of persecution for the Convention reason of religion – where applicant’s uncle politically active in the community – where applicant claimed to have witnessed his uncle’s murder – where Tribunal found that the applicant would be afforded effective state protection if he were threatened by his uncle’s murderers – whether findings and reasons of Tribunal evidence jurisdictional error or a breach of procedural fairness.

Migration Act 1958 (Cth), s.474

Morato v MILGEA (1992) 39 FCR 401
S157 v MIMIA [2003] HCA 1

Applicant:

SZDBY

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SZ 827 of 2004

Delivered on:

23 July 2004

Delivered at:

Sydney

Hearing date:

23 July 2004

Judgment of:

Raphael FM

REPRESENTATION

For the Applicant:

Applicant in Person

Counsel for the Respondent:

Ms R Francois

Solicitors for the Respondent:

Clayton Utz

ORDERS

Application dismissed.
Applicant to pay the respondent’s costs assessed in the sum of $4,000.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ827 of 2004

SZDBY

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The applicant is a citizen of Pakistan. He arrived in Australia in July 1998 and applied for a protection (class AZ) visa on 7 September 1998. On 31 October 1998 a delegate of the Minister refused that application and on 25 November 1998 the applicant lodged an application for review of that decision with the Refugee Review Tribunal. The Tribunal held a hearing and on 12 September 2000, determined to affirm the decision not to grant a protection visa. It handed down that decision on 28 September 2000. The applicant took no further steps in the matter but was not deported from Australia.
This meant that on 22 March 2004, when he found himself in the Villawood Detention Centre, he was able to lodge an application with this court for review of the decision of the Refugee Review Tribunal. Given the four year delay in making this application, it will be open to me, even if I was to find that the applicant had grounds upon which review should be granted, to exercise my discretion against the grant of such review. The applicant's claim to have a well founded fear of persecution for the convention reason of religious belief arises from his membership of the Sunni sect and the fact that he lived in an area of Pakistan in which the Shiite sect, which is the minority sect in that country, was in the majority.
The applicant's uncle was a district leader of the Sunni minority in that area and the applicant claims that he had an association with him in relation to his uncle's activities on behalf of the Sunnis. In 1995, the applicant's uncle was shot dead and in the applicant's belief, this was because of his association and leadership of the Sunni movement. After the murder of his uncle, the applicant came forward as a witness. No other witnesses came forward. However, as a result, certain persons were arrested and detained for this crime. The applicant told the Tribunal that he believed that his name was on the Shiite hit list.
So he left the district and went into Brunei, where he stayed between November 1995 and July 1998. He did return, he says, in 1997 to see his family and claimed before the Tribunal (but not at any earlier stage) that during that time he was assaulted. The applicant agreed with the Tribunal that he did not report the attack on him in 1997 to the police, saying that this was because "they had not done any justice in his uncle's case". After questioning from the Tribunal, the applicant conceded that there was not much that the police could do considering that he was not there to give evidence.
The applicant claims that if he returns to Pakistan, he will be sought out by the local Shiites and they will do violence to him. He claimed that he could not re-locate to another area of Pakistan where the Sunnis were in the majority and that was why he sought the protection of the Australian Government. The Tribunal accepted the murder of the applicant's uncle but determined that in so far as the applicant himself was concerned, it did not accept that he had been attacked in 1997. The Tribunal reasoned that such a serious matter would have been contained in the applicant's original assertions either in writing or to the delegate.
That being the case, the only persecution that the applicant feared was what might happen to him if he returned to give evidence against the perpetrators of the murder of his uncle. In relation to this matter, the Tribunal determined that his claim to be targeted by reason of witnessing a crime was not persecution for a convention reason; Morato v MILGEA (1992) 39 FCR 401. The Tribunal did consider whether the reason that the applicant was being targeted could be characterised as being based on an imputed political or religious opinion and came to the conclusion that it could not.
Most importantly, the Tribunal concluded on the evidence of the applicant himself and of available independent country information, that even if what he had said about the threats made against him was correct, he would be provided with effective State protection in Pakistan.
The Tribunal pointed to the fact that the alleged murderers of his uncle had already been arrested once and that the only reason why they did not proceed to trial was the fact that the applicant himself chose to leave the country.
In the application made by the Tribunal on 22 March 2004 he argued that the Tribunal had failed to comply with the requirements of the Migration Act, that it failed to accord him procedural fairness, that it failed to find in his favour, that it failed to have regard to certain Amnesty International reports in relation to violence in Pakistan and that it accepted country information from DFAT which was in conflict with certain unspecified reports from the BBC. None of these claims were particularised and when I asked the applicant what he had to say in relation to them he was unable to say anything at all.
As Ms Francois says in her helpful submissions in relation to grounds 1 and 2 there is no error apparent on the face of the decision. Ground 3 clearly seeks impermissible merits review and the lack of particularisation in respect of ground 4 and 5 means that it is impossible for the court to properly consider them. In any event, it is unlikely that a court would find that a failure by the Tribunal to have regard to reports contradicting reports that the Tribunal had utilised amounts to reviewable error as the same is limited by virtue of s.474 of the Migration Act 1958 and the findings of the High Court in PlaintiffS157/2002 v Commonwealth (2003) 211 CLR 476.
I am satisfied that the decision of this Tribunal does not disclose any error that would lead to the conclusion that it failed to exercise or exceeded its jurisdiction. There is no evidence whatsoever that the Tribunal failed to provide the applicant with procedural fairness or that it failed to complete the task upon which it embarked. I am not aware of any matters that it took into account that were irrelevant or that it failed to take into account any relevant material.
In these circumstances the application must be dismissed. I order that the applicant pay the respondent's costs which I assess in the sum of $4,000.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Courts Rules.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: 5 August 2004