SZDXC v Minister for Immigration
[2005] FMCA 887
•9 June 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZDXC v MINISTER FOR IMMIGRATION | [2005] FMCA 887 |
| MIGRATION – RRT decision – Pakistani Shia feared persecution by extremist Sunnis – did not attend Tribunal hearing – no error found. |
| Migration Act 1958 (Cth), ss.424A, 424B, 483A, Part 8 Judiciary Act 1903 (Cth), s.39B |
| Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 |
| Applicant: | SZDXC |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG 1917 of 2004 |
| Judgment of: | Smith FM |
| Hearing date: | 9 June 2005 |
| Delivered at: | Sydney |
| Delivered on: | 9 June 2005 |
REPRESENTATION
| Counsel for the Applicant: | Applicant in person |
| Counsel for the Respondent: | Mr Z Chami |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
Application dismissed.
Applicant to pay the respondent’s costs in the sum of $5000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1917 of 2004
| SZDXC |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application under s.483A of the Migration Act 1958 (Cth) which challenges a decision of the Refugee Review Tribunal dated 13 May 2004 and handed down on 3 June 2004. The Tribunal affirmed a decision of a delegate which refused to grant a protection visa to the applicant.
Section 483A gives the Court “the same jurisdiction as the Federal Court in relation to a matter arising under this Act”. The relevant jurisdiction in a matter such as the present is under s.39B of the Judiciary Act 1903 (Cth) subject to limitations under Part 8 of the Migration Act 1958 (Cth). As interpreted in Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476, the limitations have the effect that I cannot set aside the Tribunal decision and send the matter back unless I am satisfied the decision was affected by jurisdictional error. I do not myself have power to decide whether the applicant should be believed or whether he qualifies for a refugee visa.
In the present case, the applicant came to Australia in 1997 under a student visa from Pakistan. He returned there on visits, and his last arrival in Australia was in 1999. He applied for a protection visa on 21 August 2003, assisted by a migration agent.
No information about his claims was contained in his application, which referred to a statement of claim. A two-page unsigned statement was forwarded later by his agent. In it, the applicant claimed to fear that he would be killed by Sunni Muslim extremist members due to his belonging to the Shia sect of the Muslim faith. His claims were, in my opinion, sufficiently summarised by the Tribunal in its reasons:
The applicant is aged in his late thirties. According to the details in his original application he completed a degree in Pakistan in 1992 and he was then self-employed before he came to Australia as a student in 1997. He said that he had returned to Pakistan in 1999 to see his mother. In a statement accompanying his original application he said that his family had a jewellery business. He said that they belonged to the Shia sect and he said that Shia Muslims in his area had suffered at the hands of the extremist Sunni organisation, the Sipah-e-Sahaba Pakistan (SSP). He said that there were riots in September 1998 in which his two elder brothers had been injured and ‘our shops were burnt in main market because we had lot of properties owned by us in the main market’.
The Applicant said that he had been a member of the Shia Muslim party, the Tehrik-e-Nifaz-e-Fiqah-e-Jaffaria (TNFJ), and he said that he had been entrusted ‘to look after our community not by way of violence, but by the ways of the peacefully means’. He said that as a result his name had been ‘placed on hit list of the SSP’ and there had been an order from the ‘high command’ of the SSP that he should be killed. He said that he had therefore had no option but to leave the country and he had come here as a student. The applicant said that, following the fall of the Taliban in Afghanistan, terrorists had now moved into his area and they supported the SSP. He said that he had been attacked many times and had received threats from the SSP. He said that he had heard that his cousin had been shot and was on his deathbed. He said that this incident has been ‘created by the SSP’ and that ‘our shops’ had been looted by the SSP. He said that he feared that he would be killed because of his ‘religious opinion’ if he returned to Pakistan.
His application was refused by a delegate on 24 October 2003. The delegate gave reasons which were sent to the applicant and his agent. These included an assessment of the situation in Pakistan and, in particular, in the applicant’s home state of Punjab. The delegate indicated that he was not satisfied on the basis of available evidence that protection by the Pakistani authorities would be lacking in the applicant’s case. The delegate also said that, even if the applicant held a genuine subjective fear of being harmed by the SSP, he was not satisfied that it would be unreasonable for the applicant to relocate to another part of Pakistan to avoid the sectarian violence which characterised his home region.
On 12 November 2003 the applicant applied for review by the Refugee Review Tribunal, assisted by his agent. His application for review did not contain any additional supportive material. In the section where he was invited to “tell us why you consider yourself to be a refugee”, there was written: “Written submission will be sent if so advised.”
The Tribunal had doubts about the signature on the application, which was not that of the applicant, but the applicant subsequently did sign the application. No submission or additional material was ever sent to the Tribunal by the applicant or his agent.
On 12 March 2004 the Tribunal wrote to the applicant and his agent stating:
The Tribunal has considered the material before it in relation to your application but is unable to make a decision in your favour on this information alone.
The letter invited the applicant to attend a hearing on 21 April 2004: “to give oral evidence and present arguments in support of your claims”. It suggested to the applicant also that he should: “send us any new documents or written arguments you want the Tribunal to consider.”
The letter enclosed a “Response to hearing invitation form”, which was returned on 1 April 2004, signed by the applicant. It indicated that the applicant did not want to come to the hearing and said:
I consent to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable me to appear before it.
The Tribunal did not make a decision until after the previously appointed hearing date, and there is no suggestion that the applicant changed his mind or ever attempted to attend a hearing. The Tribunal indicates that it proceeded to make a decision on the basis of the material already before it.
In its reasons, the Tribunal referred to authority which points out that an applicant can only succeed if the Tribunal can be “satisfied” that he is a refugee, and that it remained for an applicant to persuade the decision-maker that all of the statutory elements are made out (citing Kirby J in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 596).
The Tribunal then gave the following reasons for affirming the delegate’s decision:
In the present case the Applicant’s statement provides very little detail beyond the assertions that the Applicant is a Shia Muslim and a member of the TNFJ, that he has been threatened and attacked by the SSP and that he believes that his name is on an SSP ‘hit list’. The Applicant’s statement suggests that these circumstances existed before he first came to Australia as a student in 1997 yet he returned to Pakistan in 1999, he says to see his mother. He came back to Australia and continued his studies and he did not apply for a protection visa until August 2003. As Heerey J noted in Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347, it is legitimate to take into account an applicant’s delay in lodging an application for a protection visa in assessing the genuineness, or at least the depth, of the applicant’s claimed fear of persecution. In the present case I am unable to be satisfied on the evidence before me that the Applicant genuinely fears the SSP, its supporters or terrorist or Sunni Muslims more generally because he is a Shia Muslim or because of his claimed involvement in the TNFJ. I am unable to be satisfied that there is a real chance that the Applicant will be persecuted for reasons of his religion or his political opinion if he returns to Pakistan now or in the reasonably foreseeable future.
I am unable to be satisfied on the evidence before me that the Applicant has a well-founded fear of being persecuted for a Convention reason if he returns to Pakistan. It follows that he is not a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Consequently the Applicant does not satisfy the criterion set out in paragraph 36(2) of the Migration Act for the grant of a protection visa nor is he the spouse or a dependant of a person who holds a protection visa as required by paragraph 36(2)(b).
I have carefully considered the procedures and reasoning followed by the Tribunal and have been unable to identify a jurisdictional error affecting its decision.
I should record that, although nothing in the applicant’s applications or submissions raised the question of compliance with s.424A of the Migration Act, the respondent anticipated that the Court might wish to consider that question in the light of the recent High Court decision in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24. I have considered the Minister’s submissions, and accept that the reasoning of the Tribunal does not reveal a failure to observe an obligation arising under s.424A(1) to give to an applicant written notice of information used adversely. In my view, the present Tribunal’s reasoning falls within the third proposition extracted from relevant authorities by the majority in VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at [24]:
(iii) the word does not encompass the tribunal’s subjective appraisals, thought processes or determinations: Tin at [54]; Paul at FCR 428 [95]; ALD 317; Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 1679; BC200107472 at [25]; approved [2002] FCAFC 120; BC200203793; nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc: WAGP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 124 FCR 276 at 282–4 [26]–[29].
In the present case, I consider that the reason for the Tribunal affirming the decision was its assessment of the applicant’s claims made in relation to his visa application, and its identification of gaps and concerns arising from those claims which left the Tribunal unable to be satisfied that the applicant met the criteria under the definition of refugee. The Tribunal had been left in that position by reason of the applicant’s decision not to attend the Tribunal to provide more information. I therefore do not consider that the Tribunal was under any obligations under s.424A and s.424B, and therefore do not have to consider whether there is evidence bearing on whether or not a notice was served.
The applicant has had no apparent assistance from legal representatives, although he received advice from a barrister under the funded Legal Advice Scheme. His application and amended application, in my view, do not identify jurisdictional error.
His complaints are sufficiently found in the latter document where he said:
1)The decision was one sided and was not fair with me.
2)It did not take into account the ongoing situation in my country with my community like everyone knows what is going on with this community. The officer did not consider these facts while making the decision.
3)The officer exercise his powers and did not consider my situation as I and my family been threatened by S.S.P. (The organisation working against our community), that I will be killed if I am there.
4)The respondent (DIMIA) was not advised of and did not take into account the applicant’s good conduct person since entering Australia.
5)I don’t know much about the law but I believe there must be the law of humanity which can protect people like me.
6)My life is in danger if I go back so please do the justice and mercy on my situation.
In relation to paragraph 1, I think this is probably no more than a complaint about the outcome of the applicant’s appeal to the Tribunal. If it is to be read as suggesting that the Tribunal was biased, there is no substance to that allegation shown in the evidence before me.
In relation to paragraphs 2 and 3, I can find no evidence in the material before me or in the Tribunal’s reasons that it failed to identify and consider the applicant’s claims. The complaint is, in effect, that the Tribunal arrived at the wrong assessment of those claims. This does not raise a jurisdictional error.
The Tribunal has not based its decision on country information, and therefore complaints about this have no relevance. The applicant cannot now complain that there was country information, not submitted by him to the Tribunal, which was not considered.
The complaint in paragraph 4 is not relevant to considering jurisdictional error by the Tribunal, since it concerns the delegate’s reasoning.
I have listened sympathetically to the applicant’s other pleas, and understand his desire to stay in Australia, but I have been unable to identify jurisdictional error affecting the Tribunal’s decision that would allow me to keep his case in the Tribunal alive.
In his oral submissions to me today, the applicant candidly admitted that he is unable to make submissions concerning the legal issues which I have to decide.
For the above reasons, I must dismiss the application.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Iliya Marovich-Old
Date: 29 June 2005
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