SZELG v Minister for Immigration

[2007] FMCA 83

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZELG v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 83

MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal required to make finding about allegation of threat by father of applicant where Refugee Review Tribunal made general findings.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91S; 474; pt.8 div.2

Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs 75 ALD 630 at 641

Applicant: SZELG

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG2897 of 2004

Judgment of: Emmett FM

Hearing date: 8 December 2006

Date of last submission: 8 December 2006

Delivered at: Sydney

Delivered on: 2 February 2007

REPRESENTATION

Counsel for the Applicant: Mr I. Asuzu

Solicitors for the Respondent: Mr P. Reynolds, Clayton Utz

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2897 of 2004

SZELG

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 29 July 2004 and handed down on 19 August 2004.

2. The applicant was born on 20 October 1980 and claims to be from Pakistan and of Islam faith (“the Applicant”).

3. The Applicant claims that prior to arriving in Australia he was a student.

4. The Applicant arrived in Australia on 24 October 2003, having legally departed from Karachi on a passport issued in his own name and a visitor’s visa issued on 9 October 2003.

5. On 10 December 2003, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”) under the Act.

6. In his protection visa application, the Applicant claimed that he feared persecution by the senior members of his community in (“the Jaragha”) because he had fallen in love with a girl called Rizwana in his village. The Applicant claimed that, after returning from higher studies, he was told that he was betrothed to his uncle’s 5 year old daughter. The Applicant claimed that, after he went to see Rizwana to tell her of this betrothal, Rizwana’s uncle reported their meeting to the Jaragha. The Jaragha sentenced both Rizwana and the Applicant to death. The Applicant claimed that after he ran away from his village to Lahore, he was shot at by two people.

7. On 5 March 2004, a delegate of the First Respondent (“the Delegate”) refused the Applicant’s application for a protection visa on the basis that the Applicant is not a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (“the Convention”).

8. On 23 March 2004, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal. Before the Tribunal, the Applicant maintained the claims made in his protection visa application. On 29 July 2004, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.

9. On 22 September 2004, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.

Legislative framework

1. Section 65(1) of the Act authorises the decision-maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision-maker is not so satisfied then the visa application is to be refused.

2. Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees.

3. Australia has protection obligations to a refugee on Australian territory.

4. Article 1A(2) of the Convention relevantly defines a refugee as a person who:

   “owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”

5. Section 91R and s.91S of the Act refer to persecution and membership of a particular social group when considering Article 1A(2) of the Convention.

The Tribunal proceeding

1. The Applicant attended a hearing before the Tribunal at which he gave oral evidence.

2. The Tribunal accepted that the Applicant is a national of Pakistan.

3. Before the Tribunal the Applicant stated that he was in a 3 year relationship with a girl from his village, Rizwana, whose uncle objected to the relationship. The Applicant stated that the uncle approached his father to have the matter settled according to tribal custom. The Applicant stated that his father was very angry and locked up the Applicant for 1 or 2 days, saying that he would kill the Applicant if it was true that he had a relationship with Rizwana. The Applicant stated that 40 witnesses gave false evidence against him and it was decided that Rizwana should be shot. The Applicant escaped with his mother’s help. The Applicant stated that, as a result, the tribe issued a Special Announcement for his capture.

4. The Tribunal then explored the Applicant’s escape to Peshawar and noted that the Applicant had had no contact with his family since leaving them.

5. The Tribunal explored with the Applicant how he obtained a copy of the Special Announcement and noted that the Applicant stated it was given to him by a friend. The Tribunal asked the Applicant how the friend may have come to be in the possession of a copy of the Special Announcement if there was no way to contact his family and that he had had no contact with them and that the friend was not from his tribal village. The Tribunal noted that the Applicant said that he did not know how the friend had obtained a copy of the Special Announcement.

6. The Tribunal noted that it asked the Applicant if the friend had known the Applicant was going to apply for refugee status and when the Applicant said that the friend did know, the Tribunal suggested that perhaps the friend had written the Special Announcement in order to assist the Applicant. The Tribunal noted that the Applicant responded that the friend could not write Pashdu. The Tribunal noted that it suggested to the Applicant that the Applicant could have arranged for someone else to write the Special Announcement and noted that the Applicant said he did not know.

7. The Tribunal also explored with the Applicant his allegation of being shot at in Lahore. The Tribunal noted that it put to the Applicant it found it difficult to believe that anyone could have located him, so far from home in a big city, so soon after he left the village if, indeed, the shooting was related to his relationship with Rizwana. The Tribunal noted the Applicant’s response that he did not know why they would have covered their faces and fired shots if they were only thieves.

8. The Tribunal noted that it discussed with the Applicant that independent information revealed that women, not men, were the main victims of honour killings and noted the Applicant’s response that his tribe were not well educated.

9. The Tribunal then had regard to independent country information about activities of the Jaragha in honour killings.

10. The Tribunal found that the alleged shooting incident in Lahore was not linked with the Jaragha. In reaching that conclusion, the Tribunal noted that the Applicant subsequently returned to live at the address in Lahore without any further threats or similar incidents occurring. The Tribunal inferred from that fact that the Applicant was not located by anyone wishing to harm him because of the Special Announcement arising from his relationship with Rizwana.

11. The Tribunal was not satisfied that the Special Announcement was a copy of a document issued by anyone from Jaragha.

12. The Tribunal stated that the Applicant had provided no reliable documentary evidence, apart from his own account, that a young woman called Rizwana was killed by an order of Jaragha. The Tribunal found that the Applicant’s claim of a relationship with Rizwana over 3 years was “incongruous and implausible” in circumstances where he had never mentioned his interest in her to his parents. The Tribunal also noted that the Applicant showed no outward signs of concern about the manner of Rizwana’s death, nor any grief about her at all.

13. However, the Tribunal did accept that independent evidence disclosed that honour killings occur in remote areas such as the Applicant’s village and that such killings may never come to the attention of the Pakistani authorities or media.

14. Whilst the Tribunal expressed doubt about the plausibility of the Applicant’s claims that he had an illicit relationship with Rizwana, the Tribunal stated “I cannot discount the possibility his claim is true. I have considered it below.”

15. The Tribunal found that, whilst he remained in Pakistan, the Applicant was not the target of any threats or harassment by people from his tribe after he left his village. The Tribunal also found that during the years since he left his village he has received no information at all that anyone wishes to harm him.

16. The Tribunal accepted that the Jaragha was interested in restoring peace and honour to both Rizwana’s family and the Applicant’s family and that it had the opportunity of negotiating with the Applicant’s family to resolve the matter by way of compensation after the Applicant left the village.

17. The Tribunal concluded there was insufficient evidence before it to enable it to establish what the Jaragha may have decided in relation to the Applicant prior to his departure from the village. The Tribunal noted that the normal practice appeared to be to seek compensation in situations where the man has escaped and that such a course would be consistent with the absence of any evidence that any attempt was made to locate or harm the Applicant after he had left the village.

18. The Tribunal concluded that it was not satisfied that anyone wished or intended to seriously harm the Applicant in Pakistan and found that the chance of such harm occurring is remote.

19. The Tribunal concluded that the Applicant’s fear of serious harm amounting to persecution is not well founded and concluded that, having considered the evidence as a whole, it was not satisfied that the Applicant is a person to whom Australia has protection obligations under the Refugee’s Convention as amended by the Refugee’s Protocol.

The proceeding before this Court

1. The Applicant was represented by Mr Asuzu, of counsel, at the hearing before this Court.

2. The Applicant relied upon an amended application filed on 18 October 2006 in the following terms:

   “ 1. The RRT failed, or constructively failed, to exercise jurisdiction, by reason that the RRT failed to consider an integer of the Applicant’s claims

   Particulars

   The RRT’s Reasons for Decision records (CB 70.3):

   “His father threatened to shoot him if it was true that he had met Rizwana”

   and also records (CB 72.3)

   “His father was very angry and locked (SZELG) up at home for 1-2 days saying that if he found out it was true he would kill [the Applicant]”

   The RRT made no finding about the above claim.”

3. Counsel for the Applicant submitted that the Tribunal failed to consider whether the Applicant had a well founded fear of persecution from his father by reason of his membership of a particular social group, being “men of Pakistan’s tribal system who have illicit relationships with women wherein the honour of the woman’s family is breached as a consequence of that relationship.”

4. Counsel for the Applicant contended that the Tribunal had failed to make any finding about the Applicant’s claim that his father had said he would kill the Applicant if it was true that he had had a relationship with Rizwana. Counsel for the Applicant submitted this was an integer of the Applicant’s claim and that the Tribunal had failed to exercise jurisdiction by not making a finding in respect of that claim. Counsel for the Applicant contended that the Tribunal did not articulate any consideration of this integer in its decision.

5. Counsel for the Applicant submitted that the Tribunal’s finding that an “absence of any evidence that any attempt was made to locate or harm [the Applicant] after he left the village” should not be taken as consideration by the Tribunal of the Applicant’s claim of a fear of harm from his father. Counsel for the Applicant submitted that the finding of the absence of evidence by the Tribunal was made in the context of the Applicant’s family being relatively wealthy and able to pay compensation. Counsel for the Applicant submitted that the option of compensation had always been available and therefore did answer the Applicant’s claim of an expressed intent by his father to kill him.

6. Counsel for the Applicant submitted that the execution of the Applicant for having a relationship with a woman could not serve a legitimate objective and therefore the sanction of his death by tribal custom was persecution in the Convention sense.

7. The First Respondent submitted that the finding by the Tribunal that the Applicant was not targeted by “his tribe” or by “anyone” was a finding that included the Applicant’s father. Counsel for the First Respondent submitted that these findings by the Tribunal “are at level of generality which can reasonably be understood as including the Applicant’s father”. Counsel for the First Respondent also referred to the statement by the Tribunal that, in reaching its conclusion, it had considered the evidence as a whole and that there was no reason to doubt that statement by the Tribunal.

8. Certainly, the Tribunal set out the Applicant’s claims about his fear at the hands of his father in the “Claims and Evidence” section of its decision. The Tribunal noted that it asked the applicant why “anyone” wanted to harm him and noted the Applicant’s response that his father was very angry and locked up the Applicant at home for one or two days saying that if he found out it was true he would kill the Applicant.

9. Certainly, the Tribunal’s findings arose in the context of the Tribunal considering the Applicant’s fear of harm from his tribe, as a result of the Special Announcement issued by the tribe for his capture.

10. Part of the Tribunal’s reason for affirming the decision under review involved the Tribunal’s adverse finding about the Applicant’s evidence where there was no reliable corroborative documentary evidence, apart from the Applicant’s own account, that Rizwana had been killed. The Tribunal found that the Applicant did not appear to be concerned about the manner of Rizwana’s death or have any grief about her at all. However, the Tribunal went on to consider that the Applicant was telling the truth and concluded that it was not satisfied that anyone wished or intended to seriously harm the Applicant in Pakistan and that a chance that such persecution would occur is remote.

11. A fair reading of the Tribunal’s decision makes it clear that the Tribunal was not able to make specific findings about assertions made by the Applicant, other than that “there is insufficient evidence before the Tribunal to enable me to establish what the jirga may have decided in relation to [the Applicant] since his departure.” The Tribunal noted that there had been no attempt to locate or harm the Applicant after he left the village and that such circumstances were consistent with the practice, as disclosed in the independent information for the Tribunal, that compensation is sought from a man’s family where he has escaped punishment where on the suspicion of an illegal relationship with a woman who has been killed her alleged partner has escaped.

12. In rejecting the Applicant’s evidence, the Tribunal noted that the Applicant’s account of a 3 year relationship with Rizwana, which had not led him to mention his interest in her to his parents as a way of “stimulating discussion between the families about marriage”, seemed “somewhat incongruous and implausible.”

13. There is no reason to assume that the Tribunal’s findings that there was not “anyone” who wished or intended to harm the Applicant in Pakistan did not include the Applicant’s father. Particularly, in circumstances where the Tribunal did not accept the Applicant’s claims generally.

14. Accordingly, it was not necessary for the Tribunal to make a specific finding that it did not accept the Applicant’s claims about a fear of persecution from his father, other than as a member of the Jaragha tribe. The First Respondent contended that persecution by his father, otherwise than as a member of the tribe, could not be persecution for a Convention related reason.

15. In circumstances where the Tribunal was not satisfied that the Jaragha had in fact issued the Special Announcement calling for the Applicant’s capture and was not satisfied that the Applicant had been in the relationship with Rizwana, as a result of which she was killed, it is otiose for the Tribunal to make a specific finding about the Applicant’s claim of a fear of being killed by his father because of his relationship with Rizwana or because Rizwana had been killed and he had escaped punishment.

16. Accordingly, in accordance with the submissions of the First Respondent, I find that the Tribunal’s general finding that it was not satisfied that anyone wished or intended to harm the Applicant is a general finding that covered the specific allegation by the Applicant that his father had threatened to kill him if it turned out to be true that he had a relationship with Rizwana. (Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [91]; Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs 75 ALD 630 at 641).

17. Accordingly the Tribunal’s decision is not affected by jurisdictional error and is a privative clause decision. In the circumstances, pursuant to s.474 of the Act this Court has no jurisdiction to interfere. The Applicant’s proceeding before this Court is dismissed.

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Emmett FM

Associate:  S. Kwong

Date:  31 January 2007