SZDRY v Minister for Immigration
[2005] FMCA 155
•24 February 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZDRY v MINISTER FOR IMMIGRATION | [2005] FMCA 155 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – no jurisdictional error – application dismissed. |
Migration Act 1958 (Cth), ss.91R, 91X, 442B
Judiciary Act 1903 (Cth), s.39B
Applicant VCAT of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 141
WAEJ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 161
Re Minister for Immigration & Multicultural Affairs; Ex parteMiah (2001) 206 CLR 57
Muin v Refugee Review Tribunal (2002) 190 ALR 601
VAAC v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 74
Minister for Immigration & Multicultural Affairs v Ibrahim (2000) 204 CLR 1
Kioa v West (1985) 159 CLR 550
Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
VSAI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1602
Minister for Immigration and Multicultural and Indigenous Affairs v Respondents S152/2003 (2004) 78 ALJR 678
Applicant A & Anor v Minister for Immigration & Ethnic Affairs & Anor (1997) 142 ALR 331
R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust.) Pty Ltd (1949) 78 CLR 389
| Applicant: | SZDRY |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG1623 of 2004 |
| Delivered on: | 24 February 2005 |
| Delivered at: | Sydney |
| Hearing date: | 9 February 2005 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
| Solicitors for the Applicant: | Mr A Silva of Silva Solicitors |
| Counsel for the Respondent: | Mr J Smith |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The application is dismissed.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1623 of 2004
| SZDRY |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The proceedings
This is an application for a review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 22 June 1998, affirming the decision of the delegate of the respondent (“the delegate”) made on
17 June 1997 to refuse to grant the applicant a protection visa.
Background
The applicant in these proceedings is not to be identified pursuant to provisions of s.91X of the Migration Act 1958 (Cth) (“the Act”) and has been given the pseudonym “SZDRY”.
The applicant, who is a citizen of Pakistan, arrived in Australia on
12 July 1996. On 23 January 1997 she lodged an application for a protection visa with the Department of Immigration & Multicultural Affairs (“the Department”) under the Migration Act 1958 (Cth) (“the Act”). On 17 June 1997 the delegate refused to grant a protection visa and on 7 July 1997 the applicant sought a review of the delegate’s decision.
The applicant was born in February 1973 in Lahore, Pakistan and described herself as a housewife. She obtained her passport on
19 November 1995 and arrived in Australia as a student on 12 July 1996. She stated she lived at the same address in Lahore between 1987 and 1995. The applicant claimed to have been educated in Lahore and completed an Arts degree in 1993. She has not been employed.
The applicant claimed she was threatened by members of the Sunni Sipah-I-Sahaba Pakistan (“SSP”) because she is a Shi’a and her husband and father-in-law were leaders of the Shi’a community. The applicant indicated in her original application that a detailed statement of her claims would be provided in due course. However, no such statement was received by the Department or the Tribunal. When she appeared before the Tribunal, the applicant indicated that she did not want to return to Pakistan for three reasons:
a)the Shi’a/Sunni problems;
b)the difficulties for women in Pakistan; and
c)there were no facilities for children in Lahore (CB p.51)
The Tribunal’s findings and reasons
The Tribunal did not accept that the absence of child care facilities in Pakistan was grounds for obtaining refugee status in Australia.
In respect of the applicant’s claim that women had difficulties in Pakistan, the applicant presented no evidence to sustain this argument in general nor evidence that she herself had suffered any particular disadvantage. The Tribunal noted that Benazir Bhutto is a leader of a major political party in Pakistan and had been Prime Minister of Pakistan. The applicant was able to attend University and obtain an Arts Degree. The Tribunal did not accept the claim that women in Pakistan had difficulties that made them a unique, disadvantaged social group in that country.
The Tribunal did not accept that the applicant’s claim that she or her husband would be harmed if they returned to Pakistan because of her husband’s position as a prominent Shi’a community leader. The evidence before the Tribunal was that the applicant’s husband had been out of Pakistan for almost a decade and he had made just one short vaguely political speech during a ten week visit to Pakistan when he attended to his father’s funeral and to his marriage. The Tribunal held that this was not the kind of political profile that would make the husband, and hence the applicant as his wife, targets of Sunnis in Lahore (CB p.57).
Application for review of the Tribunal’s decision
On 28 May 2004 the applicant filed an application for review under s.39B of the Judiciary Act 1903 (Cth). On 25 October 2004 the applicant filed an amended application which contained the following grounds:
“1.The Tribunal used critical adverse information obtained after the delegate’s decision which was neither provided to the Applicant before the hearing nor put to the applicant properly during the hearing.
Particulars
a)Page 12.70 – Raja Zulfikar, ‘President Okays Anti-Terrorism Bill into Act’, Dawn Wire Service, 23 August 1997
b)Page 12.75 ‘Security Heightened in Pakistan’s Punjab Amid Sectarian Violence’ Agence France Presse. 10 August 1997 CX24513
c)Page 12.80 DFAT Cable IS2618 ‘Pakistan Sectarian Violence’ 11 June 1997, CX23252
2.The Tribunal made jurisdictional error as it misapplied the meaning of persecution.
Particulars
On page 12.20 the Tribunal said:
“I do not accept that the internecine violence involving militant Sunni and Shiite organisations such as the SSP and the Lashkar-I-Jhangvi on the one hand and the TNFJ and the SMP on the other, provides a basis for concluding that either the Sunni community or the Shiite community is engaged in a course of systematic conduct directed against the other community which could be characterised as ‘persecution’ for the purposes of the Convention (see Chan, referred to above, per McHugh J at 430).”
Notice of Objection to Competency
On 25 June 2004 the respondent filed a Notice of Objection to Competency in the following form:
“1.The Court has no jurisdiction to review the decision made by the Refugee Review Tribunal (“the Tribunal decision”) on 22 June 1998 as subsection 477(1A) of the Migration Act 1958 provides that an application to the Federal Magistrates Court under section 39B of the Judiciary Act 1903 and section 483A of the Migration Act 1958 must be made within 28 days of the notification of the Tribunal decision.
2.The applicant has not identified any other decision that is sought to be reviewed.”
Applicant’s submissions
Mr A Silva, Solicitor, appearing for the applicant, filed written submissions prior to the hearing and made oral submissions in support of those submissions during the hearing. The applicant solicitor tendered and applied for an affidavit of the applicant sworn on
8 September 2004 (“the affidavit of the applicant”) to be admitted into evidence. Attached to the affidavit was a transcript of the proceedings before the Tribunal on 10 June 1998. It was conceded by the applicant that the transcript had not been prepared by one of the recognised court reporting services and may contain some errors. The affidavit and transcript were accepted into evidence, noting that possible defect.
In respect of the amended application, the applicant contended:
a)The Tribunal stated:
“It is necessary to consider whether sectarian violence is tolerated by the government of Pakistan or, in the alternative, whether the government of Pakistan is unable to protect its own citizens from such violence. As McHugh J stated in Applicant A, referred to above, at 354:
‘The Convention is primarily concerned to protect those racial, religious, national, political and social groups who are singled out and persecuted by or with the tacit acceptance of the government of the country from which they have fled or to which they are unwilling to return. Persecution by private individuals or groups does not by itself fall within the definition of refugee unless the State either encourages or is or appears to be powerless to prevent that private persecution.’
In my view, there is no evidence that the government of Pakistan condones the violence. On the contrary, the evidence indicates that the government is taking concrete measures to keep it under control, including the introduction of a new Anti-Terrorism Act giving enhanced powers to the law enforcement agencies ……”
The Tribunal then cited the authorities in support of this statement.
b)
It was submitted that the issue of whether state protection is available and whether the government condones the violence is so important that it should have been put to the applicant, however there is no reference to this issue in the transcript. It was further submitted that the present case is not a case where the provisions of s.422B can apply as that section of the Act commenced on
4 July 2002 and is applicable only to reviews of decision by the Tribunal which commenced after that date: Migration Legislation Amendment (Procedural Fairness) Act 2002 (Cth).
c)The applicant contended that in Applicant VCAT of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs at [27] the Court held that:
“At most, natural justice required that the Tribunal disclose to the appellant the substance of the country information, sufficiently indicate its importance, and give the appellant an opportunity to respond to the information …”
It was submitted that none of the above requirements were met and the substance of the information was not put because the Tribunal did not mention to whom they could complain, its importance was not indicated and there was no opportunity to respond in any practical sense.
d)It was submitted that in WAEJ v Minister for Immigration & Multicultural & Indigenous Affairs the Full Court comprising Lee, Marshall and Hill JJ allowed the appeal on the grounds that adverse information was not provided to the appellant. In that case it was stated that it was not in issue that the Tribunal did not refer the Reuters report to the appellant as material upon which it intended to rely to reach its conclusion in the matter. Further, since the Reuters report was not material relied upon or referred to in the decision of the delegate or in the first decision of the Tribunal, the appellant could not have been expected to know of the material or, more particularly, to have had any understanding that the Tribunal would purport to use it in the manner in which it did. The Full Court stated at [34]:
“It is clear that the RRT relied on country information in the course of dismissing the appellant’s claims. In doing so, without advising the appellant of its intention to reply on that material and without offering him an opportunity to comment upon it, the RRT denied the appellant procedural fairness.”
At [40] it was held that a breach of the rules of natural justice occurred in the manner in which the Tribunal conducted its proceeding: Re Minister for Immigration & Multicultural Affairs; Ex parteMiah per Gaudron J at [99], McHugh J at [143], Kirby at [196]; Muin v Refugee Review Tribunal (“Muin”) per Gleeson CJ at [30], Gaudron J at [64], McHugh J at [137]-[138], Kirby J at [236].
e)It was submitted that in VAAC v Minister for Immigration & Multicultural & Indigenous Affairs the Full Court allowed the appeal setting aside the Tribunal’s decision for not providing adverse information to the appellant. In that case the Full Court held at [27]:
“It is well established that the rules of natural justice require that a decision-maker bring to an applicant’s attention the critical factor on which the decision is likely to turn so that he or she may have an opportunity of dealing with it: see Kioa v West (1985) 159 CLR 550 at 587; Broussard v Minister for Immigration & Ethnic Affairs (1989) 21 FCR at 472 at 481; and Pilbara Aboriginal Land Council Aboriginal Corporation Inc v Minister for Aboriginal and Torres Strait Islander Affairs (2000) 103 FCR 539 at 557 and the cases there cited.”
f)Gummow J in Muin at [171] simply said that he would not withhold relief on any discretionary grounds and Kirby J at [202] said:
“Ordinarily, where an aggrieved party establishes a want or excess of jurisdiction, the writ of prohibition issues almost as of right. In my view, there is no discretionary reason for refusing the plaintiffs the relief that they each seek.”
g)The applicant contended that the Tribunal misunderstood the meaning of persecution in the sense it misunderstood the meaning of “systematic conduct” required to constitute persecution for a Convention reason. In the decision of the High Court in Minister for Immigration & Multicultural Affairs v Ibrahim (“Ibrahim”), Gaudron and McHugh JJ addressed the meaning of ‘persecution’. At [14] Gaudron J stated:
“The difficulty in applying the Convention definition of "refugee" in circumstances such as those in Somalia lies in recognising what, in those circumstances, is involved in the notion of "persecution".
h)It was submitted that there was no reason why threats posed by the militant groups on the opposing community and most especially to people who have links to leadership at various levels in the other opposing community would not constitute persecution because ‘it was not systematic conduct’. The applicant contended that persistent threat of harm would suffice based on religion (being Shi’a) as the harm is ever present.
Respondent’s submissions
Mr J Smith of Counsel, appearing for the respondent, filed written submissions prior to the hearing and made supporting oral submissions during the hearing. The respondent contended:
a)The information relevant to the first ground concerned the availability of protection and the applicant claimed the availability of protection was so important that it should have been put to the applicant. It was submitted, however, the issue of protection and its relevance to the decision was obvious and the Tribunal had no obligation to raise it expressly with the applicant in order to afford procedural fairness. The issue arose in the visa application because the applicant claimed that she had had problems with other Muslim groups because she was a Shi’a (CB p.18). The delegate considered this aspect of the claim and accepted that there was violence between Sunni and Shi’a Muslims in Pakistan. The delegate also found that:
“The Pakistan authorities have not tolerated these acts and responded by arresting and prosecuting individuals from both groups. Individuals were arrested as a result of particular criminal actions and not actual or imputed political or religious views.”
b)Counsel submitted that the issue of protection, or the government’s attitude to the violence was “on the table” and was a matter which the applicant was or ought to have been aware could affect the outcome of her application for review. It was contended that the applicant had, throughout the process of review, the opportunity to make submissions in respect of the government’s attitude or to submit material to the Tribunal which suggested that the delegate was wrong in this respect. Counsel submitted that nothing done (or not done) by the Tribunal denied the applicant an opportunity to present her case in this respect and the applicant’s attention had already been drawn to the critical factors on which the Tribunal’s decision might turn: Kioa v West (“Kioa”) at 587. It was submitted that in light of this there was no unfairness in the Tribunal’s failure to expressly raise this issue with the applicant.
c)Counsel contended that the Tribunal did not misunderstand the meaning of persecution and its findings in that regard did not affect its decision. In assessing the claim that the applicant feared harm from other Muslims (Sunnis) the Tribunal analysed the source of the threat. It accepted that there continued to be a problem of “feuding between the extremist elements of the SSP and the TJP” (CB p.59.1). However, it was submitted, the Tribunal distinguished between this feuding and the attitude of the Sunni and Shi’a communities at large. Counsel contended that it was in this context that the Tribunal said:
“I do not accept that [the feuding] provides a basis for concluding that either the Sunni community or the Shiite community is engaged in a course of systematic conduct directed against the other community which could be characterised as “persecution for the purposes of the Convention.” (CB p.59.3)
Prior to this statement, the Tribunal set out the following summary of a passage in the judgment of McHugh J in Chan Yee Kin v Minister for Immigration and Ethnic Affairs at 430:
“ … in order for the threatened harm to constitute “persecution” for the purposes of the Convention, it must be able to be seen (as) 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.” (CB p.59.2)
d)In other words, Counsel contended, that the Tribunal was aware that the term “systematic course of conduct” related to the reason for the conduct, not its extent and this was consistent with recent explanations of that phrase: Ibrahim per McHugh J at [92] and VSAI v Minister for Immigration and Multicultural and Indigenous Affairs at [53] per Crennan J. Alternatively, it was submitted, the finding that there was effective state protection meant that any error relating to the source of the harm did not affect the Tribunal’s decision. Counsel contended that the question of state protection may be relevant to the definition of a refugee in a number of ways: as to whether an applicant’s fear is well-founded; whether there is a Convention reason for the harm feared and whether the applicant’s unwillingness to avail himself or herself of the country’s protection is justified: Minister for Immigration and Multicultural and Indigenous Affairs v Respondents S152/2003 at [21] per Gleeson CJ, Hayne and Heydon JJ.
e)Counsel submitted that that was consistent with the passage cited by the Tribunal from the judgment of McHugh J in Applicant A & Anor v Minister for Immigration & Ethnic Affairs & Anor (CB 59.6). It was submitted that in this decision, the finding was that the Government did not condone the violence but, rather, took concrete measures to keep it under control. This was one of the findings material to the Tribunal’s conclusion that the applicant was not a person to whom Australia had protection obligations. Therefore, Counsel contended that any error in the Tribunal’s reasons as to whether the harm feared from the Sunni community (or extremist elements of it) had no effect on the decision: even if the Tribunal had concluded that there was conduct that could amount to persecution, the applicant could not justify her unwillingness to avail herself of the protection of the state and her fear was not well-founded.
f)Finally, it was submitted, that even if the Tribunal had erred in either of the ways suggested by the applicant, she ought to be refused relief because she took almost six years to file an application for review and has not given any explanation for that delay: R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust.) Pty Ltd at 400.
Reasons
There were three issues in this application. Firstly, whether the Tribunal denied the applicant procedural fairness by relying on country information without first having given the applicant the opportunity to address it. Secondly, whether the Tribunal misunderstood the meaning of ‘persecution’ within the Convention. Thirdly, if any of the first two issues was answered in the applicant’s favour, the Court should not refuse to exercise its discretion in her favour. In respect of the first issue, which was the subject of ground 1 of the pleadings, the applicant’s argument presented with a line of authority was that the applicant was denied procedural fairness because of various pieces of country information were not provided to the applicant with an invitation to respond to their content on the basis that the content of that material was adverse to the applicant’s position. The critical issue here was that the applicant should not be taken by surprise by the introduction of an issue or information of which the applicant was not cognisant or aware. The respondent argued, contrary to the applicant’s contention, that the key issue before the parties was the violence between Sunnis and Shi’a Muslims in Pakistan. The critical factor was the attitude of the Pakistani Government to these issues of violence. The issue of the Pakistani Government’s response to the violence between Sunni and Shi’a groups was a critical factor on which the Tribunal’s decision would turn.
The issue of violence between the extremists in the respective Shi’a and Sunni groups and the Government attitude toward that violence had been clearly raised earlier in the delegate’s decision in paragraph 3.5.4 and 3.5.5 of their report. This was repeated by the Tribunal member (CB p.59) in that the Pakistani Government protected its citizens and did not condone violence. By way of contrast, the situation referred to in Kioa per Mason J at 587:
“But if in fact the decision-maker intends to reject the application by reference to some consideration personal to the applicant on the basis of information obtained for another source which has not been dealt with by the applicant in his application there may be a case for saying that procedural fairness requires that he be given an opportunity of responding to the matter.”
This is clearly distinguished from the circumstances of the Tribunal’s decision in this matter. The question of sectarian violence between the Shi’a and Sunni extremists was the key issue driving the decision making process by the Tribunal. In Kioa per Mason J at 587 his Honour states:
“The applicant is entitled to support his application by such information and material as he thinks appropriate and he cannot complain if the authorities reject his application because they do not accept, without further notice to him, what he puts forward.”
The basic tenet of the argument being put forward by the applicant is that she would suffer harm or harassment because she is a member of the minority Shi’a group in Pakistan. The Tribunal’s decision sets out the reasons that it does not accept the argument or material submitted by the applicant (CB p.59). In the circumstances, I do not believe the applicant has been denied procedural fairness in the assessment of or the reliance on the country information amplifying the Pakistani Government’s attitude and measures to control secular violence.
I cannot accept that the applicant’s reasoning for the line of authority applied to this country information is the correct application and that the argument can be sustained.
In respect of ground 2, the issue is whether the Tribunal misunderstood the meaning of “persecution” within the Convention. It is noted that this decision was made prior to the introduction of s.91R of the Act that commenced operation on 1 October 2001. I accept the respondent’s submissions that the Tribunal understood the test as to what constituted persecution. In its decision, the Tribunal correctly sets out the decision containing the test to be applied in determining what constitutes persecution and then correctly applies it to the circumstances of this case.
As neither of the grounds pleaded can be sustained, the third issue does not arise. No jurisdictional error has been identified and consequently the application filed on 28 May 2004 and amended on 25 October 2004 should be dismissed. For this reason it is unnecessary to consider the Notice of Objection to Competency filed on 25 June 2004.
Conclusion
For the reasons set out above, the application should be dismissed.
I am satisfied that an order for costs should be made in this matter.
I order the applicant to pay the respondent’s costs and disbursements of and incidental to the application.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate: Menna McMullan
Date: 24 February 2005
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