SZEKQ v Minister for Immigration
[2005] FMCA 1379
•4 August 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZEKQ v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1379 |
| MIGRATION – Review of decision of Refugee Review Tribunal – Pakistani citizen – Sunni Muslim – particular social group – delay – alternative employment – no jurisdictional error – application out of time – dismissed. |
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347
| Applicant: | SZEKQ |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File No: | SYG2853 of 2004 |
| Delivered on: | 4 August 2005 |
| Delivered at: | Sydney |
| Hearing date: | 4 August 2005 |
| Judgment of: | Mowbray FM |
REPRESENTATION
| Counsel for the Applicant: | Mr Patel |
| Solicitors for the Applicant: | V Thadsan |
| Counsel for the Respondent: | Ms Pepper |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
That the Refugee Review Tribunal be joined as second respondent.
That the application filed on 16 September 2004 be dismissed.
That costs be reserved.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2853 of 2004
| SZEKQ |
Applicant
And
| THE MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
And
| THE REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an ex tempore judgement which has been revised and edited from the transcript. It relates to a decision of the Refugee Review Tribunal made on 7 January 2000 and handed down on 1 February 2000.
The Refugee Review Tribunal has been joined as the second respondent in this matter, consistent with the decision of the High Court in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24.
The applicant is a citizen of Pakistan who arrived in Australia on
18 July 1997. On 15 October 1997 he applied for a protection visa. This application was refused by a delegate of the Minister on 8 April 1998. The applicant then sought review in the Tribunal. A hearing was held on 6 December 1999. The Tribunal affirmed the decision on
7 January 2000 and handed that decision down on 1 February 2000.
Claims before the Department and the Tribunal
The applicant says that he fears harm from members of the Shia community of Pakistan because he is a Sunni Muslim. He endured harm and mistreatment in Pakistan from 1992 until the time he left Pakistan in 1997.
He claims that he is easily recognisable, having been a film and TV artist. The authorities will not protect him and are reluctant to give him help, for fear of being seen to take sides.
The applicant stated that he started out selling jewellery in what was the main jewellery market in Lahore and that he got to know some film stars who shopped there. As a consequence he was given the opportunity to act in a motion picture. He was paid more by the jewellery company to work at the shop to attract more customers.
He alleges that the Pakistani film industry is owned by and dominated by Shia Muslims. As a result he started getting threats because of his popularity.
He says that in December 1994 he went to a Mosque for evening prayer. Before he could enter, five or six people threw a cloth over his head and punched him while threatening him. He went to the police and laid a complaint, but they were reluctant to do anything because he could not identify the attackers.
One night in March 1996 the applicant and his wife were out late and were waiting for a taxi. He claims that four or five men approached them and grabbed them and took them to a van. His wife escaped and managed to frighten them off by screaming for help. The men went away, after punching him and threatening him. The police were once again unhelpful. When the applicant took the matter up with his movie artist association chairman, there was no action either.
The applicant alleges that in July 1997 he and his wife and daughter were once again waiting for a taxi late at night and four or five men forced them into a van. The van drove off but was followed by the applicant's brother-in-law who had seen them get into the van. The driver became scared from being followed and the applicant and his family were thrown out of the van. The applicant's brother-in-law picked them up and took them home.
They happened to have visas for Australia so they decided to leave Pakistan.
Tribunal decision
The Tribunal decision is accurately summarised in the respondent's submissions:
10.The Tribunal was not satisfied on the evidence before it that the applicant had a well-founded fear of persecution. This was because of the difficulty the Tribunal had in accepting that the applicant was telling the truth about what happened to him in Pakistan having regard to the inconsistencies in the applicant's evidence.
11.The Tribunal did not accept:
A.that the applicant genuinely feared persecuted (sic) for a Convention reason if he returned to Pakistan;
B.that he had been threatened by members of the Shia community in Pakistan as claimed;
C.that he was attacked on three occasions as claimed;
D.that he received threatening phone calls including that he should leave the film industry.
12.The Tribunal found that even if it were to accept that the film industry in Pakistan was dominated by Shia Muslims and the applicant might be denied the ability to work in the film industry because he is an adherent of the Sunni sect, the Tribunal did not consider that this would amount to persecution for the purposes of the Convention.
13.Moreover there was nothing in the evidence before the Tribunal to suggest that the applicant would be unable to support himself and his family by being involved in jewellery and garment stores if he were to return to Pakistan now or in the foreseeable future.
14.The Tribunal had regard to the fact that the applicant and his wife had waited till the last day before their visitor visas expired before lodging applications for protection visas in assessing the genuineness of their alleged fear of persecution.
15.Finally the Tribunal considered that even if for some reason the applicant could not continue to live in Lahore, it would be reasonable to expect him to relocate to some other city in Pakistan where he would be able to pursue jewellery and garment retailing.
Consideration
The amended application filed on 21 January 2005 set out the following grounds:
A.It identified a wrong issue, it asked itself a wrong question and/or it relied on irrelevant material in that the Tribunal considered the applicant's delay in coming to Australia cast a doubt on whether the applicant genuinely feared being persecuted, if he returned to Pakistan.
B.It identified a wrong issue, it asked itself a wrong question and/or it relied on irrelevant material in that the Tribunal considered that the applicant's delay in applying for a Protection Visa after he had come to Australia cast a doubt on whether the applicant genuinely feared being persecuted, if he returned to Pakistan
C.It identified a wrong issue and/or it asked itself a wrong question in that the Tribunal considered whether or not the applicant should work in the film industry in Pakistan, in the event that he returned to Pakistan, and whether or not it was reasonable or proper for him to do so with a view to avoiding the threats that had previously been made against the applicant.
D.The Tribunal made a jurisdictional error in that it identified a wrong issue and/or it asked itself a wrong question in that the Tribunal was wrongly influenced and misdirected itself by an expectation that the applicant should not work in the film industry in Pakistan, in the event that he returned to Pakistan, with a view to avoiding the threats that had previously been made against the applicant.
Natural justice
At the hearing the applicant, through his counsel Mr Patel, sought to add two further grounds. The first ground was a natural justice one. I quote from the applicant's submissions at [29]:
The applicant was denied natural justice in as much as it took into consideration the anonymous information it received on credibility issue but failed to make any finding and state to what extent if any that information had any bearing on the issue of credibility.
I put to Mr Patel that I could see nowhere in the Tribunal’s reasons for decision where it had actually relied upon or referred to that anonymous information. He agreed with me that there was nothing in the Tribunal's decision to suggest that it had regard to that material. Furthermore, that anonymous information had been put to the applicant (see Court Book at 203). A letter had been sent to the applicant in August 1999 informing him of the information and he had responded through his migration agent.
However, as there was nothing in the Tribunal's reasons to suggest that it had relied or had any regard to that information, I refused leave to the applicant to amend along those lines.
Particular social group
The second matter on which Mr Patel sought leave to amend the application related to a particular social group. He sought to include a ground that the Tribunal had constructively failed to exercise its jurisdiction. He said that it had not dealt with a claim made by the applicant – that the applicant had been persecuted, and feared persecution, as a member of a particular social group consisting of members of the entertainment industry or film actors who were also Sunnis.
The respondent objected to my granting leave to the applicant to make such an amendment as it was futile. Nevertheless there was full argument by the respondent on this particular ground. Ms Pepper for the respondent also accepted that the Minister was not prejudiced in addressing this claim at the hearing.
I therefore granted leave to add the ground and considered the particular social group issue first.
In his outline of submissions Mr Patel stated at paragraphs [25] and [26]:
25.The Tribunal misunderstood and misconstrued the basis of the applicants claim in as much as it failed to grasp that the applicant was not claiming protection as a member of class of persons who are Muslims who belong to the Sunni sect. The Applicant claimed to be a member of different social group and not the group identified by the Tribunal. The Membership of the social group relied on by the applicant was quite different and the Tribunal failed to correctly understand and appreciate the distinction between the two separate distinct groups. The Tribunal having failed to correctly identify the group consequently failed to apply the correct law.
26.The need to correctly identify the correct social group and the consequences of such failure were well put by the High Court in Dranichnikov. v. Minister For Immigration and Multicultural Affairs [200]) HCA26.
Mr Patel in oral submissions reiterated that if a claim was made on a particular basis, and the Tribunal looked at it on a different basis, then the Tribunal's jurisdiction was not properly exercised. Furthermore in its consideration of the applicant's subjective fear, the Tribunal must look at that subjective fear in the context of the particular social group claimed. Mr Patel said that the Tribunal examined the applicant's subjective fear in the different context of a broader particular social group. If it had narrowed the particular social group to the one that he asserted the applicant was putting, that would have placed a different light on the whole claim.
Essentially what Mr Patel was arguing was that the findings of the Tribunal on the credibility of the applicant were tainted by its failure to recognise and articulate the particular social group that the applicant had claimed before the Tribunal.
Ms Pepper for the Minister submitted that the Tribunal's reasons must be read as a whole. She took me to various passages in the Court Book commencing with the original application for a protection visa and concluding with the reasons for decision and findings of the Tribunal. It is not necessary to refer in detail to all that material here.
The critical passages are in the findings and reasons for decision of the Tribunal at Court Book 212 and 213. First from 212:
Having regard to the inconsistencies and implausibility in the Applicant's evidence and to his delay, both in coming to Australia after his visa was granted and in applying for a protection visa after he came here, I do not accept that the Applicant genuinely fears being persecuted for a Convention reason if he returns to Pakistan. I do not accept that he was in fact threatened by members of the Shia community in Pakistan as he has suggested. I do not accept that he was attacked on the three occasions he has described nor that he received threatening telephone calls indicating that he should leave the film industry. Furthermore, as I put to the Applicant, even if I were to accept that the film industry in Pakistan was dominated by Shia Muslims and that he might therefore be denied the ability to work in the film industry because he is an adherent of the Sunni sect, I would not consider that this would amount to ‘persecution’ for the purposes of the Convention. (emphasis added)
At Court Book 213:
I do not accept that there is a real chance that the Applicant will be persecuted by reason of his adherence to the Sunni sect alone, without more. Indeed, as I have said, in his original statement and his statutory declaration the Applicant expressly linked the persecution he claimed to have experienced to his work in the film industry. (emphasis added)
In my view it is reasonably clear, from the Tribunal's reasons read as a whole, in the context of the material that was advanced by the applicant, that it both understood and considered the claims of the applicant as relating to persecution of a Sunni Muslim film actor or entertainment industry personality. Even if the Tribunal did not express it in these words, it dealt with it in substance.
From the last quote, particularly, from page 213 in the Court Book, it is obvious that the Tribunal was very conscious that the applicant's claims related to him as a film industry personality, who was a member of the Sunni Muslim sect.
It was therefore in this context that the Tribunal totally rejected the applicant's factual claims. It is readily apparent from the passage at Court Book 212 that the Tribunal regarded the applicant as a person with significant credibility problems who had not been truthful before the Tribunal.
As a consequence the Tribunal concluded that the applicant held no genuine fears of being persecuted in Pakistan for a Convention reason. This is the critical finding, and I can discern no error of jurisdiction in reaching this finding. The applicant's particular social group claim must be rejected.
Delay
The first two grounds in the amended application relate to delay in leaving Pakistan and coming to Australia, and delay in Australia in applying for a protection visa. These issues were squarely put to the applicant by the Tribunal. The authorities are quite firm on this, that such delay is a highly relevant consideration in assessing the genuineness of the alleged fear of persecution (Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347.
Grounds A and B on delay must be rejected.
Alternative employment
The final two grounds in the amended application concern the applicant's ability to work outside the film industry on return to Pakistan. At 212 of the Court Book the Tribunal stated:
Furthermore, as I put to the Applicant, even if I were to accept the film industry in Pakistan was dominated by Shia Muslims and that he might therefore be denied the ability to work in the film industry because he is an adherent of the Sunni sect, I would not consider that this would amount to ‘persecution’ for the purposes of the Convention.
The Tribunal then went on to suggest that the applicant could find work outside the film industry. It is with this that the applicant takes issue. However, as is obvious from the paragraph as a whole, this is an alternative finding. The Tribunal's rejection of the applicant's claims is not dependant on it. Once the Tribunal found that the applicant had no subjective fear, that was the end of the matter. This was conceded by Mr Patel for the applicant at the hearing.
There was no need for the Tribunal to reach this alternative finding on work outside the film industry in Pakistan, having, in my view, without jurisdictional error, concluded that the applicant held no genuine subjective fear.
Conclusions
Counsel for the Minister submitted that the application must be dismissed as no reviewable legal error had been disclosed. I agree.
It is apparent that the Tribunal formed an adverse view about the credibility of the claims made by the applicant. These findings were reasonably open to the Tribunal on the material before it. I am satisfied that the Tribunal made no legal error going to jurisdiction in coming to its decision. I find that the decision of the Tribunal is a privative clause decision having regard to the authority of the High Court in Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476.
The respondent lodged a notice of objection to competency in that the application was well outside the 28 days allowed for privative clause decisions by virtue of s.477(1A) of the MigrationAct1958. The Court is not able to enlarge that 28-day period. The application was clearly out of time.
In the circumstances, I uphold the objection to competency and dismiss the application.
I certify that the preceding thirty-eight paragraphs are a true copy of the reasons for judgment of Mowbray FM
Associate: Natasha Werner
Date: 10 October 2005
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