SZEUZ v Minister for Immigration
[2006] FMCA 1032
•20 July 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZEUZ v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1032 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming religious persecution in Pakistan – no reviewable error found – application dismissed. |
| Federal Magistrates Court Rules 2001 (Cth) |
| Abebe v Commonwealth (1999) 197 CLR 510 Kopalapillai v Minister for Immigration (1998) 86 FCR 547 Minister for Immigration v Rajalingam (1999) 93 FCR 220 Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 NAHI v Minister for Immigration [2004] FCAFC 10 Re Minister for Immigration; ex parte Durairajasingham (2000) 168 ALR 407 SZEUZ v Minister for Immigration [2005] FMCA 967 VTAG v Minister for Immigration [2005] FCAFC 9 VWFW v Minister for Immigration [2006] FCAFC 29 W148/00A v Minister for Immigration (2001) 185 ALR 703 |
| Applicant: | SZEUZ |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG232 of 2006 |
| Judgment of: | Driver FM |
| Hearing date: | 20 July 2006 |
| Delivered at: | Sydney |
| Delivered on: | 20 July 2006 |
REPRESENTATION
The Applicant appeared in person
| Counsel for the Respondents: | Mr T Reilly |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG232 of 2006
| SZEUZ |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Refugee Review Tribunal (“the RRT”). The decision was handed down on 15 December 2005. The RRT affirmed a decision of a delegate not to grant the applicant a protection visa. The applicant is from Pakistan and had made claims of religious persecution. I adopt as background for the purposes of this judgment paragraphs 2-4 of written submissions prepared on behalf of the Minister which were filed on 13 July 2006:
The applicant applied for the visa on 11 November 2003: court book, pages 1-26. The delegate refused the visa on 3 February 2004: court book, pages 27-33, and the applicant applied to the RRT for review on 1 March 2004: court book, pages 34-37. After an earlier decision of the RRT made without a hearing was set aside in SZEUZ v Minister for Immigration [2005] FMCA 967 (Smith FM), the RRT held a hearing on 30 September 2005.
The applicant claimed to fear persecution for reason of his religion in Pakistan. He claimed to have converted from Sunni to Shia Islam on 7 December 2001, and to have been beaten with iron rods by Sunni fanatics in his home town of Gujranwala, after which he relocated to Karachi on 23 March 2003. However he claimed to have been chased by Sunnis one day, before coming to Australia as a member of a karate team. He claimed to fear harm from Sunnis if returned to Pakistan. See generally court book, pages 52-57.
The RRT did not accept that the Applicant was a Shia convert as he claimed, noting that he was unable to give a credible account of his conversion, and displayed little knowledge of Shia beliefs for a convert. Accordingly the RRT found that the applicant had not been threatened for reason of his claimed conversion in Pakistan, and that there was no real chance of him being persecuted for this reason in future: court book, page 60.8. The RRT also found that even if it had accepted that the applicant was a Shia convert it would not have found that his claimed fears were well founded, noting country information (discussed with the applicant at the hearing: court book, pages 55-56) that Shias and Sunnis generally live together in harmony in Pakistan, that the Pakistan government had banned extremist groups such as Sipah-I-Sabah and that only small numbers of Shias are affected by sectarian violence each year, and that state protection was available to Shias. It noted that given its views as to the applicant’s credit, it preferred this country information to the applicant’s claims in the event of inconsistency: court book, page 61.9. Accordingly the RRT found that the applicant’s claimed fears were not well founded. See generally court book, pages 59-63.
This matter first came before me on 20 February 2006. At that time it was not apparent whether the application filed on 23 January 2006 disclosed an arguable case. It appeared to deal only with the merits of the RRT decision. I ordered a preliminary hearing pursuant to rule 44.12 of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”). I conducted a show cause hearing on 9 March 2006. At that time I formed a view that the application failed to disclose an arguable case on its face but, having had the benefit of reading the court book filed on 22 February 2006, it appeared to me that an arguable issue arose from what appeared to be a secondary finding made by the RRT on pages 60 and 61 of the court book. The substance of that finding was that even if the applicant was a convert to the Shia sect as he claimed his fear of harm at the hands of Sunni Muslims was not well founded.
I made a number of orders on 9 March 2006 to prepare the matter for a final hearing. Order 2 was in the following terms:
Provided that the applicant files and serves on the respondents an amended application asserting jurisdictional error by a constructive failure on the part of the Refugee Review Tribunal to consider his clam of a well-founded risk of persecution as a convert to the Shia Muslim sect, the first respondent is ordered, pursuant to rule 44.12(1)(b) of the Federal Magistrates Court Rules 2001 (Cth) to show cause why relief should not be granted in relation to that ground.
No amended application was filed. That failure on the part of the applicant raises a procedural obstacle having regard to the terms of rule 44.13(2) of the Federal Magistrates Court Rules. However, as both parties were anxious that I should deal with this matter on a final basis on its legal merits I elected to release the applicant from the strictures of that court rule.
Mr Reilly, on behalf of the Minister, deals with the grounds advanced in the application before the court in paragraph 5 of his written submissions. Those submissions are clearly right and I adopt them for the purposes of this judgment:
The RRT’s conclusions are factual ones that were open for the reasons it gives. Its conclusions as to the applicant’s credit are findings of fact par excellence: Re Minister for Immigration; ex parte Durairajasingham (2000) 168 ALR 407 (HCA/McHugh J) at [67]. So long as the RRT’s credibility findings were open to it, no error is demonstrated: Kopalapillai vMinister for Immigration (1998) 86 FCR 547 (FC) at 558-559; W148/00A vMinister for Immigration (2001) 185 ALR 703 (FCA/FC) at [64-69] per Tamberlin and R D Nicholson JJ. The Court cannot review the merits of the RRT’s decision: Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 at 272, and there is no error of law, let alone a jurisdictional error, in the RRT making a wrong finding of fact: Abebe v Commonwealth (1999) 197 CLR 510 at [137].
The applicant seeks merits review as he made abundantly clear in his oral submissions this afternoon. I am not in a position to grant the review he seeks. It is beyond the jurisdiction of the Court.
In paragraph 7 of his submissions Mr Reilly deals with the issue I raised at the show cause hearing. Mr Reilly notes that the choice and assessment of country information is a factual matter for the RRT: NAHI v Minister for Immigration [2004] FCAFC 10 at [11]-[13] and the RRT is not obliged to inquire into more recent country information than that before it: VTAG v Minister for Immigration [2005] FCAFC 9 at [41] and VWFW v Minister for Immigration [2006] FCAFC 29.
As to the issue whether the RRT had adequately addressed the applicant's claim of a well-founded fear of harm as a Shia convert the Minister relies upon the decision of the High Court in Abebe v Commonwealth (1999) 197 CLR 510 at paragraph 85 in support of the proposition that having rejected the credibility of that claim the RRT needed to go no further. In Abebe at [85], Gleeson CJ and McHugh J said:
Once the Tribunal was unable to find that [the applicant] had been arrested as claimed, her further claims of detention and rape became logically irrelevant. The Tribunal, having found that it could not rely on her evidence of arrest, was not then required to act on her allegations of detention and rape, allegations which were dependent on her claim of being arrested and taken into custody for reasons of political opinion. The Tribunal was not bound therefore to make any express finding as to whether she had been raped. Nor given the nature of her claim and the Tribunal's finding that she was not a credible witness was it required, as it might have been in other circumstances, to determine whether there was a real chance that she had been arrested as she claimed.
By the same reasoning, Mr Reilly submits that, having decided that the applicant's claim of conversion to the Shia sect lacked credibility and having rejected it, it was unnecessary to consider the applicant's claim of a well-founded fear of persecution for that reason any further. In this case the presiding member elected to do so. Mr Reilly submits that that was a permissible and commendable approach so as to make clear to the applicant what the circumstances were in relation to this claim of a well-founded fear of persecution. The decision is certainly open to that interpretation. It is not apparent on the face of the presiding member's reasoning in the middle paragraph on page 60 of the court book that he was in any doubt in relation to the adverse credibility finding.
However, in the immediately preceding paragraph commencing on page 59 of the court book the presiding member discussed the decision of the Federal Court in Minister for Immigration v Rajalingam (1999) 93 FCR 220 per Sackville J at page 241. The significance of that case for present purposes is that if the presiding member was in doubt as to the credibility finding he did need to go on to consider the applicant's claims as if they were true. The decision is also open to the interpretation that that is what the presiding member did. The applicant impressed me on the three occasions that I have had the opportunity to observe him as a man who genuinely believes that he is at risk of harm should he return to Pakistan. It is possible that he made a similar but lesser impression on the presiding member.
On the balance of probabilities and having regard to the detailed consideration of the alternative findings by the presiding member, I have formed the view that the presiding member was not so confident in relation to the credibility issue to rest at that point in his reasons. He went on to consider whether, if the applicant was indeed a Shia convert as he claimed, he had a well-founded fear of harm at the hands of Sunni Muslims.
The concern I had at the show cause hearing was that the consideration of the risk of harm by the presiding member focused upon general issues of relations between Sunni and Shia Muslims. Possibly, the only information available related to those general issues but the applicant's claim was more specific as a convert. The question in my mind was whether the presiding member needed to consider specifically what risk the applicant faced from non-State agents in Pakistan as a Shia convert.
It remains arguable, in my view, that the president member erred in relation to that issue by not considering specifically the applicant's risk of harm as a convert. However, there is a further alternative finding set out on pages 61 and 62 of the court book. The presiding member found that effective State protection in Pakistan was available and the finding was directed specifically at the proposition that the applicant was a Shia convert. That finding is in my view sufficient to sustain the validity of the decision.
I conclude that the decision of the RRT is a privative clause decision and that, in consequence, the application must be dismissed.
The application having been dismissed, costs should follow the event. The Minister seeks an order for costs fixed in the sum of $5,000. The applicant did not wish to be heard on costs. I accept the Minister's assessment of costs. I will order that the applicant pay the first respondent's costs and disbursements of and incidental to the application, which I fix in the sum of $5,000.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 25 July 2006
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