SZDZK v Minister for Immigration - [2004] FMCA 1068

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDZK v MINISTER FOR IMMIGRATION

[2004] FMCA 1068

MIGRATION – Visa – protection visa – Refugee Review Tribunal – application to review decision of Refugee Review Tribunal affirming a decision of a delegate of the Minister to refuse a protection visa to the applicant – applicant a citizen of Pakistan – applicant in immigration detention.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.424A, 475A

Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
MIMIA v Singh (2000) 98 FCR 469
Paul v Minister for Immigration and Multicultural (2001) 113 FCR 396
WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630
Abede v The Commonwealth (1999) 197 CLR 510

Applicant:

SZDZK

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SYG 2051 of 2004

Delivered on:

13 December 2004

Delivered at:

Sydney

Hearing date:

13 December 2004

Judgment of:

Scarlett FM

REPRESENTATION

Solicitors for the Applicant:

In Person

Counsel for the Respondent:

Ms Francois

Solicitors for the Respondent:

Clayton Utz

ORDERS

The Application is dismissed.
The Applicant is to pay the Respondent’s costs fixed in the sum of $4750.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2051 of 2004

SZDZK

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTRAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

This is an application for a review of a decision of the Refugee Review Tribunal made on 30 January 1997 affirming a decision of a delegate of the Minister to refuse a protection visa to the applicant. The respondent has filed a notice of objection to competency, objecting to the jurisdiction of the Court to try the application. I'm informed by Ms Francois of counsel for the respondent that this notice is not now pressed.
The application was lodged on 2 July 2004. The decision of the Refugee Review Tribunal, about which the applicant complains was made, as I said, on 30 January 1997. The applicant's history of litigation is set out in the respondent's notice of objection to competency. Briefly the applicant joined the class of applicants in the matters Muin v Refugee Review Tribunal and ors, (S36 of 1999 and ors) and Lie, v Refugee Review Tribunal and ors, (S89 of 1999 and ors) 190 ALR 601.
On 25 November 2002, Gaudron J in the High Court granted leave to all persons in either the Muin or Lie representative actions to file a draft order nisi in the High Court. Upon filing that draft order nisi, the applicants name would be removed from the class action and the draft order nisi would be remitted to the Federal Court. The applicant filed a draft order nisi on 29 May 2003, one day before the class action proceedings were to be dismissed.
His application was remitted to the Federal Court. On 20 February 2004, Emmett J, in the Federal Court of Australia refused the applicant's application. On 2 July 2004, the applicant filed this application in the Federal Magistrate's Court. Background to this matter is that the applicant is a citizen of Pakistan. He came to Australia in 1987. He did not apply for a protection visa until

16 February 1995. Delegate for the Minister refused his application on 25 May 1995.
On 21 June 1995, the applicant sought a review of that decision by the Refugee Review Tribunal. The Refugee Review Tribunal heard his application for review on 24 January 1997. The applicant appeared with the assistance of an interpreter in the Urdu language. The Tribunal handed down its decision on 30 January 1997, affirming the decision of the delegate not to grant a protection visa to the applicant. The applicant then took part in the class action to which I have previously referred.
On 2 July 2004, lodged this application. In his application, the applicant sets out his history, he says that the Refugee Review Tribunal ignored some facts and originally said that the Tribunal made a decision favouring the Department. This, however, was not pursued and was not taken as an allegation of bias. The applicant has since filed an amended application in which he sets out some submissions.

I allowed the late filing of the amended application and adjourned the proceedings for a short time to allow counsel for the respondent and her instructor to absorb the details of this amended application.
In the amended application, the applicant says that Refugee Review Tribunal exceeded its authority in affirming the decision of the delegate not to grant him a protection visa. He says that the Refugee Review Tribunal made jurisdictional errors in reaching this conclusion. The first error that he puts is that of identifying the wrong issue. He said that the Tribunal accepted his evidence that he was harassed by members of the PPP, that they assaulted him and demanded money, demanded that he join the PPP party.
He says that the Tribunal identified the issues as problems of a business relationship and thereby identified the wrong issue. His evidence is that whilst his association with members of this particular party might have begun with a business connection, their threats to him were now because he would not join their party and that was therefore a political issue. The problem he pointed out was his status as a member of a group in the population known as a Mohajir which is an Indian group discriminated against in Pakistan.
If he was a Mohajir, he could have joined the PPP. He said it was because of his ethnic group that he was caught between two political parties, the PPP and another party called the MQM, both of those parties distrust him and threaten to harm him. He then went on to claim that the Tribunal member did not consider an argument put by his legal representative in a written submission made before the hearing that he had become a refugee sur place, meaning that whilst he was in Australia, having already entered Australia, the situation in Pakistan got worse for him politically, making it dangerous for him to return.
He has not returned, he said, even to visit members of his family. He further submitted that the Tribunal came to a wrong conclusion about the delay in his application for refugee status. The delay, he said, was brought about by the fact that he originally made an application for a visa on humanitarian grounds and that it took the Department of Immigration some 3 years to process that application before finally rejecting it.
He then took steps to apply for a protection visa. The applicant criticises the Tribunal for failing to warn him of the negative evidence that the Tribunal Member relied on. He said that the Tribunal considered that the delay in making an application for a protection visa meant that he was not really in danger. He said that the Member did not warn him that he viewed his explanation in a negative way. He cites section 424A of the Migration Act and said that if the Member had followed that and told him that he viewed this delay negatively, he could have provided further evidence to support his case.
The applicant also, in his written submission, says that the Tribunal ignored relevant material, particularly in his claim that the Army of Pakistan was a threat to him. He said that in his evidence that his Tribunal, the Army had placed him on an execution list believing he was a person responsible for a variety of agitation. He said that the Tribunal did not question him on the written submission he had made to the Tribunal as long ago as 2 January 1997.
He said the Tribunal failed to make any finding on this central issue, which he says is a central issue in his case. The central issue, I should make it clear, is his fear that the Army would kill him. He further criticised the Tribunal for ignoring evidence about his lack of protection from the police and he reiterates his concern about the Tribunal, in his view, ignoring the submission by his legal adviser relating to his being a refugee sur place and to what he says are the cumulative issues of persecution set out in subparagraphs 53 to 55 of the handbook.
The applicant was given the opportunity to make oral submissions in support of his written submission. In respect to his claim that the Tribunal had identified the wrong issue, he reiterated that the Tribunal had seen his difficulties with people in Pakistan as arising out of a business relationship rather than a political connection, or indeed an ethnic difficulty, along with his membership of the group known as the Mohajirs.
This, he submitted, was in fact an identification of the wrong issue. As far as being a refugee was concerned, he told the Court that for 3 years he had been illegal, he had applied for a humanitarian visa and the department took 3 years to consider and then decline his application. He asked rhetorically: why did the department decline his application? The applicant further submitted that the Tribunal did not ask him questions about being illegal. He had made this application in 1991 for a visa on humanitarian grounds and it took the Department of Immigration and Multicultural and Indigenous Affairs, as it is now known, until 1994 to finalise that application, not in his favour.
He further reiterated that the Refugee Review Tribunal had failed to warn him of the negative view it was taking of his evidence and thereby placed him in an unfair position. He reiterated that the Refugee Review Tribunal had ignored relevant material before the Tribunal. He said: “they were not believing me, they did not listen to my evidence and they ignored some of my evidence, they are not believing that I was a refugee”. They never asked him about his submission. He said that in his submission made on 2 January 1997 he told the Refugee Review Tribunal that the army was raiding his home. The Tribunal did not ask him about this.
The Tribunal just said, "I don't believe you." He said that his parents suffered from discrimination in Pakistan because of their ethnic status. For the respondent, Ms Francois of counsel provided an outline of submissions. This written outline was based on the applicant's original application as at this stage the amended application had not been made available. As a result, parts of the submissions are no longer relevant. The submission, however, sets out a history of the applicant insofar as the respondent at least sees that it is relevant. He finished school in 1975, he worked in Saudi Arabia between 1978 and 1983.
When he returned to Pakistan he attempted to establish a small business and fostered connections with and paid money to members of the PPP political party to assist his business. This is a not uncommon practice in Pakistan, the applicant told the Tribunal. He said that the business did not succeed and in November 1985 he obtained paid employment. He began to withdraw from his association with the PPP but that resulted in harassment by them. He also said that the other party, the MQM, the Mohajir Qaumi movement, also began to harass him because they considered as a Mohajir he should support them.
He said he was not only harassed but threats. He said he was assaulted by PPP members, they slapped him and caused other violence to him. He said at that stage he formed the view that his life was in danger. He left Pakistan. He visited the United Kingdom on two occasions. He travelled to France, Switzerland and the Netherlands and the statement that he made in an attempt to find employment. In 1987 when he was in the United Kingdom he said that he was told by a friend that he should apply for an Australian Visitors Visa as there were good employment opportunities in Australia.
He made that application on 3 September 1987, arrived in Australia on 27 December in that year and has been in Australia ever since. He says that since he arrived in Australia the MQM has emerged as a strong political force and the PPP are currently in power and he fears that he would become the target of both parties if he returned. The respondent points out that the basic finding by the Refugee Review Tribunal was as to his credit. It was a blanket adverse credit finding, and that phrase is mine rather than that of counsel for the respondent. She says that the RRT’s adverse credit finding was open on the material before the RRT and as such constitutes a legally proper rejection of the applicant's credibility.
I'm referred to the well-known decision of Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547. The written submission also points out that the Refugee Review Tribunal addressed the applicant's concern about a life-threatening situation in respect of his concerns with both of the two political parties in Pakistan by noting his delay in seeking protection by applying for a protection visa. She submits that the Refugee Review Tribunal did not go into the detail of the applicant's claims but is not obliged to refer to or address all the material relied on by the applicant to support his claims, referring to Minister for Immigration and Multicultural Affairs v Singh (2000) 98 FCR 469.
Further she submits the making of particular findings based upon certain evidence may indicate that the Refugee Review Tribunal has rejected other evidence to different effect without it necessarily having said so. I'm referred to Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396 and WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630. She points out that the Tribunal considered that the applicant's claims in evidence were a fabrication because of his failure to seek protection in any of the European countries that he visited: the United Kingdom, the Netherlands, Switzerland and France, and also the delay in seeking protection in Australia.
In my view there is no serious allegation of bias and I do not propose to give that any further consideration at this stage. In oral submissions to the Court today, Ms Francois pointed out that in her view the Refugee Review Tribunal did not accept that the applicant's claim that he was harassed by the PPP. She says that the Tribunal did not accept his credit at all. On the second ground the Tribunal was not obliged to put to him why it was that they rejected his credit. She did point out that section 424A of the Migration Act was not in existence at the time the Tribunal heard his case.
That section did not come into force until 1 June 1999, that there was a common law obligation or that there were in certain circumstances to put material to an applicant but as this material all arose from what the applicant put, there was no common law obligation to put the Tribunal's concerns to the applicant.
I refer to the well‑known decision of the Abede v Commonwealth (1999) 197 CLR 500. As you did point out, the applicant said that if he was questioned by the Tribunal, he would have disclosed his earlier application under humanitarian grounds which was not, apparently, before the Tribunal at all. She says that even so, this does not explain why the applicant failed to seek a protection visa for so long when he claimed to be in fear of his life. She points out that the Tribunal was not satisfied that the applicant had anything to do with the PPP or the MQM. The Tribunal just did not accept the basic tenets of the applicant's case.
Her view was that it was not clear also as to why or how the applicant could say that he was a refugee sur place. What he had done, in his earlier statement, was that he had come to Australia and waited so long to see how things developed. In the alternative, if the Court did not object, the major submissions of Ms Francois for the respondent submitted that the Court should decline to exercise its jurisdiction because of the delay by the applicant in seeking the relief that he now seeks. I should make it quite clear, as it was made quite clear to the Court, that the delay which is being relied upon by the Minister is not the totality of time between the decision of the Refugee Review Tribunal in January 1997 and the lodging of the application in this Court in July 2004.
The delay that is being relied upon by the respondent is a closed period of delay between the Tribunal decision on 30 January, 1997 and the time when the applicant joined the class action about which I have already spoken. That delay, she points out, was still significant in that the applicant did not join the class action until 10 June, 1999 whereas the applicant had been aware of the unfavourable decision of the Refugee Review Tribunal since the end of January 1997. It is that particular period of delay, a period of over 2 years, upon which the respondent relies as a ground for refusing to exercise a discretion to grant relief.
That, she submits, is an alternative to the major submission. What then should be made of all this? It is quite clear that the basic reason why the Tribunal rejected the applicant's contentions was on the basis of credibility. On page 39 of the Court book, in the second full paragraph, the Tribunal sums up the reasons for that rejection in one paragraph and I quote:
The applicant did not convince the Tribunal that his claims were genuine in view of the combination of his travel to Europe which did not result in him seeking refugee status, and the length of time he waited in Australia before lodging a claim. The reasons he put forward for delaying his application did not appear genuine to the Tribunal.
That then is the basic reason why the Tribunal refused the applicant's claim. It was a question of credibility. The concern that the Tribunal obviously had was that if the applicant left Pakistan in 1987 in fear of his life, why then, the Tribunal asked, did he not seek protection in the United Kingdom which he visited twice, Switzerland, France or the Netherlands. All of those countries are parties to the Refugees Convention. To my mind, the evidence before the Tribunal did not provide an answer to that, and it was perfectly open to the Tribunal to form that adverse conclusion.
The applicant today has explained, or at least partly explained, the length of time that he waited in Australia before lodging a claim for a protection visa by saying that he had applied for a visa on humanitarian grounds, and that it had taken the Department 3 years to process that before refusing it. Nevertheless, that is only a partial explanation, and it was not an explanation that appears to have been before the Tribunal at all. In my view, there is no obligation on the Tribunal to inquire about the substance of such an explanation if there is no material before the Tribunal that would give some indication that such an explanation might be forthcoming.
Applicants not only before the Court but also before the Tribunal have an obligation to present their case, and to present evidence in support of this case or to make submissions in support of this case, to persuade the Court that the application should be granted. An applicant cannot expect the Refugee Review Tribunal to conduct its own independent inquiries as to the validity of an applicant's case, and to find grounds for granting the application. It is up to the applicant to convince the Tribunal, just as it is up to the applicant to convince a Court.
The very question of the rejection of the applicant's evidence by the Tribunal is largely based on the fact that the Tribunal did not accept the applicant's evidence. The Tribunal did not believe him. There is material in the supplementary Court book, including a statement about the fact that the applicant sought employment in the UK and Europe, and sought employment in Australia which may be a reason, although as that documents seems to be dated 26 August 2004, it seems that that could not have been before the Tribunal, and that is a matter that the Tribunal could not have had in its mind.

Nevertheless, the basic reason why the applicant's case was rejected by the Tribunal was because the Tribunal did not accept the evidence of the applicant. The applicant gave evidence and was accompanied by an interpreter. He had made written submission, or his legal advisers had made written submissions and in my view, the blanket rejection of his credibility covers the particular points made, not only by the applicant but also by his legal advisers. As I have found for the respondent in respect of the primary contention, it is unnecessary for me to fall back on the - to consider the respondent's alternative contention about the length of time expiring, being inimical to a grant of - exercising discretion to grant relief.
In my view, the decision of the Tribunal was based on rejection of the applicant's evidence. There was material before the Tribunal which made a rejection of that evidence an appropriate course for the Tribunal to follow and as such, there is not reviewable error. The application must be dismissed.
As the respondent has been successful, an order for payment of legal costs is sought.
I note the fact that the respondent is currently in immigration detention. He indicates that he does not have the funds available to pay the costs. I do accept the fact that the Minister's costs appear to have been somewhat larger than would normally be the case, but I'm not prepared to go as high as a figure in excess of $6000 as Ms Francois, perhaps rather optimistically, submitted. The applicant is to pay the respondent's costs in the sum of $4750. I require a transcript of my reasons for this decision. The application will be removed from the list of cases awaiting finalisation.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: A. Coutman

Date: 1 February 2005