SZEJF v Minister for Immigration - [2005] FMCA 1315

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZEJF v MINISTER FOR IMMIGRATION & ANOR

[2005] FMCA 1315

MIGRATION – RRT – Pakistani feared persecution by smugglers and religious fanatics – Tribunal found no Convention related fears – no error found.

Migration Act 1958 Cth, ss.91R(1)(a), 418(3), 424A(1), 424A(3)(a), 483A, Part 8
Judiciary Act 1903 (Cth), s.39B

Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12
Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476

Applicant:

SZEJF

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2778 of 2004

Judgment of:

Smith FM

Hearing date:

29 August 2005

Delivered at:

Sydney

Delivered on:

29 August 2005

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the First Respondent:

Ms T Wong

Solicitors for the Respondents:

Clayton Utz

ORDERS

The Tribunal be included as second respondent, and note the undertaking by the solicitor for the first respondent to file a submitting appearance by the second respondent.
The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $4,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2778 of 2004

SZEJF

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second 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 22 July 2004 and handed down 12 August 2004. The Tribunal affirmed a decision of the delegate, refusing 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), but subject to limitations under Part 8 of the Migration Act. As interpreted in Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476, the limitations on my powers have the effect that I cannot set aside the Tribunal decision and send the matter back unless I am satisfied that the decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant qualifies for a refugee visa.
The present applicant arrived in Australia in October 2003 as part of a sporting team. On 4 December 2003 he applied for a protection visa. The statement attached to the application indicated that he had obtained a University degree and then joined his family’s business. He said in the course of that business he had “got membership of an NGO (Shelter Now International) working in the area for the well being of the poor in the field of health, free medical camps, elimination of drugs, education, providing funds for small jobs at home and also missionary support as well”. He said that while working with this NGO he had started providing information to a federal government organisation working against drugs in the area, and he claimed that his information had led to the arrest of two leading members of a smugglers’ gang. He said:
After this incident, smugglers turned against me, and with the collaboration of religious elements, started propagating against me that I am agent of western NGOs and working against Islam.
He said the religious scholars had given a ‘fatwa’:
That I am working against Islam because I am working for

Non Muslims and Western Missionaries. I was threatened for life. There were several attempts to kill me. Once I was going home in the evening, they opened fire on me and I narrowly escaped.
He claimed to have moved to a town where his father had a house and shops, and continued his social welfare activities there. However, he said the smugglers found out he was in the town, and they started “following with intention to kill me”. He said that one day he was beaten when coming home from a karate club and reported this to police, but they did nothing. He said that in March 2003 he moved to Karachi: “because both smugglers and religious fanatics were enemies of my life” However, “after two months, smugglers found out that I was living in Karachi”, and one night he was fired on with a pistol. He said: “after this incident in Karachi, I asked my karate club manager in (his town) and told him this entire story. He told me about the selection of karate team which was going to take part in karate championship in Sydney, Australia”, and the applicant came to Australia with that team.
A delegate refused the application on 5 December 2003, and the applicant applied for review by the Tribunal. His application attached his previous statement, but he presented further documents to the Tribunal when he attended hearings held by it. According to the Tribunal, he attended a hearing on 24 May 2004, and this was adjourned to 4 June 2004.
Relevantly to a submission I shall deal with below, there is no suggestion in the Tribunal's account of the evidence taken at the first hearing that there were any difficulties in relation to translation. The Tribunal's account of what was said occupies more than four pages of its reasons.
In relation to the adjourned hearing, the Tribunal said:
On that day a different interpreter had been booked and (the applicant) told the Tribunal that he was not willing to give oral evidence using this particular interpreter because the interpreter was from Pakistan. The hearing was adjourned and a new interpreter, who was not from Pakistan was arranged. The hearing continued later the same day.
The Tribunal then recounted, over another three pages, evidence taken on that occasion. There is no suggestion in the Tribunal's account that the applicant had any difficulties communicating through the second interpreter.
It is apparent that in the course of the Tribunal's hearings it discussed the applicant’s claims very thoroughly with the applicant. It is also clear that it discussed the documentary evidence that was presented by the applicant, including by alerting him to a concern that at least some of the documents were not genuine. The Tribunal also discussed country information with the applicant.
Under the heading "Findings and Reasons" the Tribunal said:
His claims have changed over time since he first submitted his application to the Department, and his oral evidence during the Tribunal hearing was somewhat confused and internally contradictory. In particular, at the hearing he resiled from his key written claim to the Department that he was a member of Shelter Now International from 1999 onwards, and for that reason, and for the reasons I put to him during the hearing, I do not accept that the letter purporting to be from this organisation’s Peshawar office, which he submitted to show he had worked for it as a “community worker”, is genuine. I do not consider plausible, and do not accept, that he had any direct contact with it.
However, the Tribunal did not reject the applicant's credibility entirely. It attempted to make a balanced assessment of other aspects of his evidence.
The Tribunal said that it was satisfied that the applicant “objects to the drug trafficking which I accept occurs in Khyber Agency, and that he holds more liberal views than some of the Pakistanis from tribes in the Khyber Agency area.” It analysed his claims as follows:
(The applicant) appears to be claiming that he fears being harmed respectively by religious fanatics, drug smugglers based in Khyber Agency and tribes people working for the smugglers.
The Tribunal then addressed the applicant's claims relating to each of these claimed sources of persecution. In relation to Khyber Agency-based narcotics smugglers, the Tribunal gave the applicant the benefit of the doubt, and accepted that he did give some information to police in early 2002. But it concluded:
even if drug traffickers or their agents from Khyber Agency did harm (the applicant) in future, there is nothing at all in his evidence to indicate that the essential and significant reason for that harm might be one of the grounds set out in the Convention. I find that there is no Convention reason for that harm.
The Tribunal's reference to “the essential and significant reason” is to s.91R(1)(a) of the Migration Act. I do not consider that the Tribunal erred in its application of that provision.
In relation to the applicant’s fear of being harmed by

"Khyber Agency-based tribal or religious leaders (the jirga)",
the Tribunal said:
I have accepted that (the applicant) holds more liberal views than some tribal leaders in Khyber Agency, and that he may have attracted their disapproval in 2002. I therefore accept that they may have imputed a political opinion to him. However, I consider the chance remote that they might subject him to harm amounting to persecution for that reason in the reasonably foreseeable future.
The Tribunal then explained that conclusion and, in my opinion, its reasoning was unaffected by any error amounting to jurisdictional error.
The Tribunal gave an additional reason in relation to this part of the applicant's claims. It said, taking into account country information:
I am satisfied that he could return to Karachi, a city in which the chance is remote that he might be subjected to persecution for the reason of his political opinions by tribal or religious leaders from the remote Khyber Agency.
The Tribunal finally addressed the applicant's claims to fear "religious fanatics", and said:
Finally, I have considered his claim to fear “religious fanatics” in light of his claim to have been thrown in a canal in (his town) by other Muslims from a local mosque. He stated that they had done this because they thought he was not a “good Muslim”, for the reasons that he employed a Christian in his shop and used the term “jihad” in a sense which offended some local sensibilities.

I accept that his unpleasant incident occurred. However, I do not accept that it involved any serious harm to him as he was uninjured and did not need medical treatment after it, and I therefore find that it did not amount to persecution. If he returns to Karachi, where he lived for some months before he came to Australia, there is nothing to suggest that the particular circumstances which led to the assault might recur – he will not be the employer of a Christian, and can readily use a less sensitive term than “jihad” if he again campaigns against drug trafficking. Therefore (the applicant’s) fear of being subjected to persecution by religious fanatics” is not well-founded.
The applicant's application filed in this Court on 8 September 2004 contained general assertions of failure to record procedural fairness, breaches of s.424A(1) and s.418(3), and failure to address a relevant matter. However, no particulars are given which would allow the Court meaningfully to assess those contentions.
The applicant attended before a registrar at the first Court date on

18 October 2004 and was directed to file and serve “any affidavit containing additional evidence relied upon, including transcript of a Tribunal hearing, by 20 December 2004”. He was also directed to file and serve “an amended application giving complete particulars of each ground of review relied upon” by that date.
The applicant filed no evidence, but filed an amended application on 21 January 2005. It is not easy to identify the separate grounds raised by this document, but I think there are five matters which I should address.
The first contention is that the Tribunal did not address elements in the applicant's claim to come within the Convention definition of refugee, and there are confused claims that some matters were not addressed. Some of these in fact do not appear to have been in his claims made to the Tribunal, and others are asserted afresh. It is enough for me to say that on my reading of the material put before the Tribunal by the applicant, it has addressed sufficiently all claims to be a refugee which were in fact made by the applicant to it.
The second contention made in the amended application is:
The Tribunal's satisfaction that I am not a refugee was not based upon reasoning which provided a rational or logical foundation for this belief.
I can find no substance in this contention. On my reading of the Tribunal's reasons it has made a particularly careful analysis of the applicant's evidence. In my view, its conclusions were both rational and based on a logical foundation.
The third contention made in the amended application is that the Tribunal did not observe obligations arising under the Migration Act in relation to conducting an investigation. It is claimed:
There (was) no proper investigation of my genuine claims.
However, in my view, the Tribunal has assessed the claims and the evidence put forward by the applicant, and was not obliged to conduct a further investigation into the matter (c.f. Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43], Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [20]).
The fourth area of contention raised by the amended application concerns the Tribunal's use of general country information. There are complaints that the applicant was not provided with particulars, nor:
An adequate opportunity to respond the substance of the information.
However, the Tribunal was not obliged by the Migration Act to put particulars of general information that it was proposing to rely upon to the applicant in any formal manner (see s.424A(3)(a)). If any other obligation of procedural fairness was applicable, on the Tribunal's description of its hearing, I am not persuaded that any relevant country information was not raised satisfactorily with the applicant during the hearing so as to afford him with a fair opportunity to meet it.
The fifth contention raised by the amended application is:
I provided oral evidences to the Tribunal. But the Tribunal made his decision in bad faith. I will provide the transcript of my audio cassette to establish my judicial review application. Because of my financial hardship I did not provide the transcript now.
It is enough for me to say that on the material presented by the applicant to me, which has not included a transcript, I think there is no basis for alleging bad faith on the part of the Tribunal.
The issue as to what happened at the hearings before the Tribunal was raised with me today by the applicant, not to contend that the Tribunal showed bias or bad faith, but to contend that he encountered difficulties in communicating through the two translators who were employed at the Tribunal’s two hearing. However, he had no evidence to present in support of that contention, which was raised for the first time today. He did not have the tapes with him and had not obtained a transcript. He did not have any evidence from an expert interpreter to prove the inadequacy of the translation services provided by the Tribunal.
When the absence of evidence was pointed out to him, the applicant applied for an adjournment of today's hearing. However, I refused to adjourn the proceeding, and gave my reasons. I considered that the applicant had been on notice for many months as to the need for evidence as to what happened at the hearing if he was going to challenge its conduct, and that an adjournment was not justified.
The applicant then sought to provoke argument with the Court concerning the adequacy of the current interpreter provided by the Court, who he identified as the interpreter who had been employed in the afternoon at the second hearing before the Tribunal. In the course of his exchanges with the interpreter and myself, it appeared to me that he understood English quite well. Ultimately, the applicant declined to make any further submissions.
I should record that I satisfied myself in the course of today’s hearing that the interpreter provided by the Court appeared to be performing his function satisfactorily and conscientiously.
For the above reasons, I have been unable to find any ground for concluding that the Tribunal's decision was affected by jurisdictional error. Its decision is therefore a privative clause decision, and I am obliged to dismiss the application.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Iliya Marovich-Old

Date: 28 September 2005