SZDKE v Minister for Immigration

[2005] FMCA 1002

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDKE v MINISTER FOR IMMIGRATION [2005] FMCA 1002

MIGRATION – Review of decision of RRT – where applicant has had proceedings previously brought in Federal Court – where some matters remain available to be considered – where the applicant alleges Wednesbury unreasonableness – where Tribunal has not been persuaded the applicant has a well founded fear.

Migration Act 1958, s.476

Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 190 ALR 601
Abebe v Commonwealth of Australia (1999) 197 CLR 510

Applicant: SZDKE

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number: SYG1215 of 2004

Judgment of: Raphael FM

Hearing date: 12 July 2005

Date of Last Submission: 12 July 2005

Delivered at: Sydney

Delivered on: 12 July 2005

REPRESENTATION

Solicitors for the Applicant: Silva Solicitors

Counsel for the Respondent: Mr R Beech Jones

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. Application dismissed.

2. Applicant to pay the respondent’s costs in the sum of $5,000.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1215 of 2004

SZDKE

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. The applicant in these proceedings is a citizen of Pakistan. 

   
   

   He arrived at Australia in 1997 and made an application for a protection visa.  The application was refused by a delegate of the Minister and the applicant sought review of that decision from the Refugee Review Tribunal. 

2. The Tribunal made its decision on 30 July 1998 and affirmed the decision of the delegate. On 25 August 1998 the applicant filed an application under s.476 of the Migration Act 1958 (the “Act”) with the Federal Court of Australia.  On 2 December 1998 Tamberlin J granted the application for review and set aside the orders made by the Tribunal.  On 9 December 1999 a differently constituted Tribunal, having taken the opportunity to hear the applicant and his Migration Agent and receive from them evidence, made a further decision affirming that of the delegate. 

3. On 7 October 1999 the applicant filed a further application under s.476 in the Federal Court. That application was heard by her Honour Matthews J who made orders dismissing it on 9 August 2000.

   
   

   Her Honour's reasons for decision are contained an annexure at page 57 to the affidavits of Laura Gazi dated 11 August 2004.

4. The applicant then joined the Muin and Lie class actions Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 190 ALR 601. When his application for an order nisi was eventually dismissed by Emmett J he immediately sought further review of the original decision of the 9 September 1999.

5. The respondents do not deny that there may be certain grounds upon which such review could be sought.  In particular, review could be sought in connection with an allegation that the Tribunal failed to provide him with procedural fairness and such an allegation has been made.   However, there are other areas for which the applicant seeks review that the respondents argue are not capable of argument because of the doctrine of issue estoppel or res judicata. 

6. The facts upon which the applicant relied to establish that he had a well founded fear of persecution for the Convention reason of political opinion can shortly be described.  He was a member and local functionary of the PPP, most easily identified as the party of former President Benazir Bhutto.  He was a ward organiser and had approximately 25 people working for him. 

7. In 1997 there were elections in Pakistan and the PPP was resoundingly defeated by a Party known as the PML.  The applicant claimed that shortly thereafter he was picked up together with three other members of the PPP and taken to a police station where he was verbally abused, threatened with indefinite detention and only released after 24 hours when his parents paid a bribe of approximately 15,000 Pakistani rupees.  Thereafter, the applicant, fearing for his life, made arrangements to utilise a passport of another person substituting his own photograph and escaped into Australia.

8. The Tribunal's decision, which is contained so far as the Findings and Reasons are concerned between [CB 186] and [191], proceeds primarily on the basis that it did not accept that the applicant's arrest was for a Convention reason.  The Tribunal also deals with a second claim concerning detention which it does not accept at all but which is not the subject of any claim for review. 

9. At [CB 189], after dealing with this matter, the Tribunal says:

   “The Tribunal notes that a single incident of detention/persecution may suffice to create a well founded fear and that the applicant does not necessarily have to establish past persecution in showing that they have a well founded fear of harm in the future.  In this case the Tribunal considered whether, even if the 24 hour detention did occur for a Convention reason, the applicant has a well founded fear of persecution.  The Tribunal gave weight to the applicant's evidence that he has a low political profile, he has been detained but not charged on one occasion, and he was released within 24 hours from that detention when a bribe was paid.  The Tribunal is not satisfied, on the basis of this evidence, that even if the detention happened as claim, there is a real chance of persecution for reason of his political opinion should the applicant return to Pakistan now or in the reasonably foreseeable future.”

10. The Tribunal also dealt with the question of the applicant's return and came to the view that his admitted low profile really did not put him in a class of persons who were likely to be subject to political risk. 

11. The applicant was represented in these proceedings by Mr Silva, who produced a further amended application, which the respondents consented to being filed.  It is easiest to deal with the claim for review by dealing with each of the grounds of that application seriatim.

The first ground is:

“The Tribunal used critical adverse country information which was not provided to the Applicant before the date of the hearing.  The Applicant was not given the essence of that information at the hearing.”

1. The first piece of information is a US State Department report which indicates that both sides of politics have used the police to kill activists in fake encounters but also says that the police pay to get posted to police stations where they can extort the local citizenry. The second is a DFAT report talking about the type of claim being made by the applicant and that PPP members were victimised after the 1997 election, save there is no evidence of the PML using security forces against the PPP.

2. The Tribunal appears to have utilised this information to come to a state of satisfaction as to whether or not the applicant was likely to have been arrested and detained for a Convention reason.  It appears to have weighed up the two conflicting reports and preferred the latter.  The country information was not used to base any express finding adverse to the applicant but merely confirmed the belief that the Tribunal had come to.  In these circumstances it does not seem to me that there was any lack of procedural fairness in not putting the reports to the applicant.

3. However, even if I am wrong about that, as the purpose of the finding was to complement the Tribunal's view that the applicant had not been detained for a Convention reason, it is negated by the finding of the Tribunal at [CB 189] previously set out, that even if the detention was for that reason the applicant’s fear of persecution was not well founded.

   The second ground is:

   “The Tribunal was Wednesbury Unreasonable in drawing a conclusion that “there is no State sponsored or no State condoned violence” in Pakistan.” 

   I will deal with this argument together with the argument in paragraph 3 which is:

   “The Tribunal made legal error in interpreting the decision in Rahman v MIMA (unreported, Federal Court of Australia, Hely J, 10 February 1999.”

4. These matters were both raised fairly and squarely before her Honour Matthews J at pages 9 and 10 of her judgment and also at page 19 found at pages 65, 66 and 75 of the affidavit of Ms Gazi.  This would indicate that an issue estoppel has come into being in respect of both of these matters.

5. The fourth ground is:

   “The Tribunal made jurisdictional error (Wednesbury Unreasonable) as it made findings that he didn't claim that  while in detention in 1997 he was mistreated and that he stated that he was not asked about his political opinion.” 

   In fact, what the Tribunal did say was:

   “The Tribunal notes that the applicant makes no claim that he was mistreated during the brief period of detention.  It is of note that there was no arrest arising from the period of detention nor was the applicant, according to his statements, asked about his political opinion while in detention.”

   I must disagree with Mr Silva.  I have read the applicant's statutory declaration and I have read the transcript and whilst I agree that the applicant said that he was abused it is quite clear that the context of that statement relates to oral abuse and the context of the Tribunal's finding would appear to me to be physical abuse.  There is certainly nothing in either the statutory declaration nor the transcript which indicates that the applicant said that he was asked about his political opinions.

6. The fifth matter is:

   “The Tribunal made jurisdictional error as it failed to take relevant considerations into account.”

   Particulars:

   The applicant left Pakistan with a fraudulent passport in a different person’s name as he feared he may not be allowed to leave.”

   There is discussion in the transcript between the Tribunal and the applicant about the false passport.  To that extent it cannot be said that the matter was not considered by the Tribunal.  The way the questioning goes one could draw an inference that the Tribunal has concluded that the applicant obtained the passport and substituted his own photograph for convenience.  Certainly, the applicant, apart from making a reference to coming to Australia "in disguise", does not attempt to persuade the Tribunal that the use of the passport indicated a subjective fear and could be evidence of an objectively well founded fear of persecution.

7. The Tribunal's duty is to come to a state of satisfaction and the courts have made it clear that in doing so a Tribunal is not obliged to comment upon every matter that goes through its mind. 

   As Gummow and Haine JJ said in Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [187]:

   “The proceedings before the Tribunal are inquisitorial and the Tribunal is not in the position of a contradictor.  It is for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution for a Convention reason.  The Tribunal must then decide whether that claim is made out.”

8. The final matter is:

   “The Tribunal made jurisdictional error as it unreasonably (in the Wednesbury sense) found, "the applicant has produced no evidence to support his claim that the detention was for a Convention reason".

   If I was to criticise the Tribunal's decision it would be in regard to this statement.  I think that an inference that the applicant was arrested for his political views can clearly be drawn from his statutory declaration where he explains that he was picked up, together with three other members of the PPP and taken to the police station.  Of course, it could also be argued that the Tribunal did consider that and came to the view that the more likely reason for his arrest was extortion. But it might have been helpful had the Tribunal said that rather than what it did say.

9. But the decision is to my mind saved by the caveat found at [CB 189] and previously referred to.  Mr Silva argues that the Tribunal was not entitled to come to the view that it did because it did so on the basis of its views as to the other evidence which the applicant had put forward and which it had rejected.  He says there is no real evidence that there was no real chance of persecution for a Convention reason.  The reality is quite the contrary.  The evidence that the Tribunal appears to be relying upon, and acknowledges it gives weight to, is that the applicant was a man of low political profile who had been detained but not charged on one occasion and was released within 24 hours from that detention when a bribe was paid.  The Tribunal is the responsible authority for determining whether that satisfies it that the applicant comes within the Convention definition.  It decided that he did not.

10. The adequacy of the Tribunal’s decision is not a matter for this court.  Provided there is evidence upon which it can make that decision then the decision is the Tribunal's to make and the Tribunal's alone.  Any interference by this court would be unlawful.

11. For the reasons expressed I am unable to provide this applicant with review of the decision of the Tribunal.  I dismiss this application and I order that the applicant pay the respondent's costs which I assess in the sum of $5,000.00.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Raphael FM.

Associate: 

Date: