SZEMP v Minister for Immigration
[2005] FMCA 1008
•6 July 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZEMP v MINISTER FOR IMMIGRATION | [2005] FMCA 1008 |
| MIGRATION – RRT decision – Pakistani claiming persecution for political activities and as an Ahmadi – Tribunal found claims to be fabricated – no error found. |
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.474(1), 483A, Pt 8
Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476
| Applicant: | SZEMP |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG 2976 of 2004 |
| Judgment of: | Smith FM |
| Hearing date: | 6 July 2005 |
| Delivered at: | Sydney |
| Delivered on: | 6 July 2005 |
REPRESENTATION
| Counsel for the Applicant: | Applicant in person |
| Counsel for the Respondent: | Ms L Clegg |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
Application dismissed.
Applicant to pay the respondent’s costs in the sum of $4,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2976 of 2004
| SZEMP |
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) (“the Migration Act”) which challenges a decision of the Refugee Review Tribunal (“the Tribunal”) dated 12 August 2004 and handed down on 2 September 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) and is subject to limitations under Part 8 of the Migration Act. As interpreted in Plaintiff S157/2002 v Commonwealth of Australia (2002) 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 have power myself to decide whether the applicant qualifies for a refugee visa.
In the present case, the applicant arrived in Australia in November 2003 on a three month temporary business visa. He applied for a protection visa on 22 December 2003 assisted by a migration agent, Mr Mollah. In his covering letter Mr Mollah said: “My client is obtaining additional corroborative evidence from Pakistan to support his application”. In the body of the application, reference was made to: “I will submit details shortly”.
The only information given in the form as to the applicant’s reasons for claiming protection from Australia were in brief handwritten insertions in the form which are somewhat difficult to read. In response to the question: “Why did you leave that country?” the applicant said:
I am the political activist in my area. I was persecuted in Pakistan because of my political opinion. Present ruling army government target me because I am a popular political young leader in my area. I on behalf of my political party’s main policy is that establish democracy and human right for the society.
I organise meeting, rally for the oppose the army torture to the general people.
When I was a popularity and much people support me then the army government target me and the army arrest me they torture me in the custody. After I released from the custody I managed to come to Australia.
I have no security of life in Pakistan under this present government.
I will provide more details later.
The applicant said that he feared that if he went back to Pakistan:
… my life is not safe. I will kill without any trial.
I was life threat in Pakistan.
A delegate refused the application on 9 March 2004. In the intervening months the applicant had not submitted any further information or documents in support of his claim. The delegate based his decision on the fact that the applicant had made extremely vague claims only and had provided no details, including details of the name of the political party with which he was involved.
An application for review was lodged on 5 April 2004 with the Refugee Review Tribunal. The application identified Mr Mollah as the applicant’s authorised agent to act on his behalf in the case. No further supporting material was included with the application, but the application contained a new claim: “I am Ahmedia Muslim by faith and I will be persecuted again if I go back to Pakistan”. It also made the assertions: “I was tortured by ARMY government in Pakistan. My home was burnt and destroyed”. The application said: “I will provide more statement to supporting review application”.
No supporting statement or material was ever forwarded to the Tribunal, although at the invitation of the Tribunal the applicant’s agent, Mr Mollah, made a written submission subsequent to a hearing held on 24 June 2004, which was attended by the applicant and Mr Mollah.
In its reasons, the Tribunal gives a description of the applicant’s evidence at the hearing and I have no reason not to accept its accuracy. A transcript is not in evidence before me. The Tribunal noted:
In giving evidence the applicant gave short and overly generalised answers. Even when I tried to obtain clarification of particular answers he simply repeated his earlier answer and did not appear to make any attempt to elaborate on earlier answers.
In response to a request by the Tribunal, the applicant produced his passport which showed that he had been working in Oman for the four years prior to his arrival in Australia, and the applicant confirmed this in his evidence to the Tribunal. He indicated that he had obtained his Australian visa in Dubai in October 2003 before briefly returning to Pakistan and then coming to Australia. The Tribunal said:
I asked the applicant why he feared returning to Pakistan. He told me that he used to be a member of a political party and after that he and some friends who sat together became involved in the Ahmadi movement. Whenever he returned to Pakistan from Oman he would be involved in that movement. He claimed that because of his involvement with the Ahmadi movement he and his parents were blackmailed and harassed by Sunni Muslims in the local community. The applicant did not name the political party of which he was a member nor did make any claim at hearing that he feared harm from Pakistan authorities because of his political opinion.
He told me that the government of Pakistan was not favourable to the Ahmadi movement and his main purpose in leaving was to keep away from “all of that”. He suffered a setback when his father passed away. If he returned to Pakistan he feared harm as the Muslim majority did not accept Ahmadis.
The applicant told me that his parents were Sunni Muslims and that he grew up as a Sunni Muslim. I asked him why he had become involved with the Ahmadis in Pakistan. He told me that there was no particular reason. He had attended a couple of lectures with friends and sat with Ahmadi friends a couple of times. He stated that the Sunni Muslims criticised the Ahmadis. Despite my questioning the applicant was not able to provide specific details of the reasons for his interest or circumstances surrounding his involvement with the Ahmadis.
The Tribunal attempted to discover what the applicant knew about Ahmadi beliefs and practices, and found that the applicant “did not know much at this stage”. He agreed with the Tribunal that he had no concrete knowledge about Ahmadi beliefs or practices.
The Tribunal pointed to the difficulties in the applicant’s claim and invited him to have a short adjournment for the purpose of contacting the Ahmadi Association in Australia to obtain evidence to verify that he was a follower of the Ahmadi faith. The applicant did not accept that invitation. Under further questioning the applicant told the Tribunal “… he was not sure what it was to be an Ahmadi or not to be an Ahmadi”.
The applicant made no mention to the Tribunal of fears based on political involvement or fears of the government in Pakistan, and the Tribunal said:
I put it to the applicant that he had never suffered any mistreatment in Pakistan. He agreed that he had not been physically mistreated but stated that [t]here was no protection in Pakistan and his father had passed away with a heart problem.
The Tribunal said that, after some discussion with the adviser about the nature of the applicant’s claims, it gave the agent further time to lodge further written submissions. Such a submission was made by the adviser, repeating a claim that the applicant had been a popular student leader in his area. In this, and in all the other material before the Tribunal, I am unable to find any evidence that the applicant ever claimed to the Tribunal to have belonged to any identified political party or movement.
In its findings and reasons, the Tribunal noted how the claims made by the applicant at the hearing had differed from his written claims. The Tribunal said:
After observing the applicant at hearing and discussing the nature and origin of his fears I formed the view that he was not pursuing his earlier claim of political persecution. However I note that the applicant’s advisor’s post hearing submission only addressed the issue of his claims of political persecution. He did not address the claims made at hearing, that is, of religious persecution. I find this unusual as the advisor was present during the hearing and heard and observed the applicant’s evidence. My reason for giving the advisor further time to make written submissions was that I considered that he may have been taken by surprise by his client’s evidence at hearing and would have wanted an opportunity to put forward some explanation of the apparent inconsistency.
The Tribunal concluded, unsurprisingly, that on a number of important issues the applicant was not a credible witness. The Tribunal accepted that he had lived in Pakistan until 1999 when he moved to Oman and had lived and worked there until he returned to Pakistan in October 2003.
The Tribunal did not accept the written claims of the applicant that he was a member of a political party or a popular student activist.
It pointed to the lack of detail in his claims and, more importantly, its finding that he had abandoned those claims by the time he came to the hearing.
The Tribunal similarly did not accept that he had been arrested and tortured by the military authorities for reason of his political opinion, as claimed in writing. Once again, this finding followed inevitably from what the applicant had told the Tribunal at the hearing.
The Tribunal accepted that the applicant was an only child of Sunni Muslims living in Lahore and found that he had been brought up as a Sunni Muslim. It then considered country information relating to the treatment of Ahmadis in Pakistan and accepted that they suffered legal and social discrimination.
However, the Tribunal did not accept that the applicant converted to become an Ahmadi, nor did it accept that he became involved or interested in Ahmadi beliefs and practices either whilst in Pakistan or in Australia. It pointed to the fact that the claim was first raised in writing in his review application. It referred to the inability of the applicant at hearing to demonstrate any knowledge of Ahmadi practices and belief and his changing evidence about his relationship to that faith. The Tribunal found that the applicant’s only interest in the Ahmadi faith was to support an application to obtain a protection visa in Australia.
In my view, it was open to the Tribunal to make that finding and it was an assessment, the likelihood of which should have been apparent to the applicant and his adviser from what happened at the hearing. The applicant’s advisor was given an opportunity to respond to it subsequent to the hearing.
The Tribunal concluded:
It is clear to me that the applicant does not wish to return to Pakistan however I do accept that the reason for his wish is that he genuinely fears persecution. I consider that he has fabricated both written claims and oral claims at hearing to support his application for a protection visa.
As I do not accept that he has been involved in political activities or that he is an Ahmadi or involved with the Ahmadi movement I do not accept that he has a genuine fear of persecution if he returns to Pakistan. As I do not accept that he has a genuine subjective fear of persecution I am not satisfied that the applicant has a well founded fear of persecution for any Convention based reason.
On the material before me, I consider that the Tribunal has properly identified all claims made at various times by the applicant to be entitled to a protection visa, and has dealt with those claims fully and thoroughly both in the course of a hearing and in its written reasons.
I consider that its conclusions were open to it and that no unfairness arises to the applicant from the severe nature of its findings since, in my view, the possibility of their making must have been apparent to the applicant and his agent in the course of the hearing.
The application filed in this Court adopts a precedent familiar to the Court, and lists a litany of jurisdictional errors without descending to any particularity to show relevance to the particular matter. When invited today to make an argument addressing these points, or any one of them, the applicant declined to do so. In the absence of argument and particulars addressing the grounds listed in the application, I am unable to give them meaningful application to the present decision.
An amended application filed on 11 December 2004 appears to rely on a ground that the Tribunal failed to take into account relevant considerations. The particulars of that claim are as follows:
1.The Tribunal did no properly consider in assessing the chance of my persecution and persecuted on my return to Pakistan based on my political involvement with the Muslim League politics in Pakistan. I am an activist of Muslim League Student front. Because of my involvement I was persecuted by Army and sunny extremist. If I persecuted by the authority & Sunni Muslim as I am a popular student leader in Pakistan it is not possible for me relocate any other place in Pakistan. I tried to relocate in Pakistan, but I failed because Sunni extremist activist searching me. When they did not find me they started searching me any where Pakistan. Sunni Muslim people also search in my house and also they threatened my family. I will be persecute if I return back to Pakistan because of my political opinion & religious believe.
2.I also persecuted because of my religious believe.
3.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 refer my statement and audio tape of my RRT interview. I will provide transcript to support my grounds later.
4.The Tribunal did not observe Migration Act properly to making the decision.
3.I fail to collect supporting documentary evidence because nobody help me to collect relevant documents.
The particulars given in paragraph 1, in effect, seek to argue some claims for protection which had never been put to the Tribunal, including for the first time a suggestion that the political party to which the applicant had an affiliation was the Muslim League Student Front. Other claims asserted not to have been considered by the Tribunal were claims which the applicant withdrew in the course of the hearing.
I cannot understand how the author of this document could see merit in an argument that the Tribunal failed to address claims that were never relied upon before the Tribunal. In my view the Tribunal did address all the claims that were actually put to it, and any relevant complaints now made by the applicant are complaints going to the Tribunal’s factual assessments only.
I can find no jurisdictional error arising out of how the Tribunal has dealt with the applicant’s claims. I can find no basis for the contention that the Tribunal arrived at a decision without a rational or logical foundation. I note that the applicant has not sought to put in evidence before me any further information about the Tribunal hearing upon which to base that contention or the contention of procedural irregularity. He has not sought to tender transcripts. I cannot find any substance in any of the contentions in this document.
The applicant appeared before me today and had no argument to put to me in support of establishing jurisdictional error in the Tribunal’s reasons. He requested that I give him more time because he was jobless and did not want to return to Pakistan. That argument does not provide reason for me to make the orders sought in the application.
In the absence of any jurisdictional error affecting the Tribunal’s decision, it is a “privative clause decision” for which relief is barred under s.474(1) of the Migration Act, and I must therefore dismiss the application.
RECORDED : NOT TRANSCRIBED
I order the applicant to pay the respondent’s costs in the sum of $4,500.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Lilian Khaw
Date: 21 July 2005
0