SZFDT v Minister for Immigration

[2005] FMCA 701

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFDT v MINISTER FOR IMMIGRATION [2005] FMCA 701

MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of the RRT affirming a decision of a delegate of the Minister not to grant the applicant a protection visa – applicant a citizen of Pakistan – claim of denial of procedural fairness – Tribunal satisfied that the Applicant could relocate within Pakistan – no evidence of denial of procedural fairness as Applicant attended hearing and gave evidence with the aid of an interpreter – claim of denial of natural justice – Applicant claimed that the Tribunal made its decision very quickly ‘within three to four days’ – RRT hearing took place on 6 September 2004 and decision not made until 18 October 2004 – no reviewable error.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), s.475A

Abebe v Commonwealth, (1999) 197 CLR 510 at [137]
Randhawa v MILGEA (1994) 52 FCR 437
MIEA v Wu Shan Liang (1996) 185 CLR 259
SBBA v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 90 at [15]

Applicant: SZFDT

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number: SYG 3530 of 2004

Judgment of: Scarlett FM

Hearing date: 11 May 2005

Date of Last Submission: 11 May 2005

Delivered at: Sydney

Delivered on: 11 May 2005

REPRESENTATION

The Applicant: Appeared in person

Counsel for the Respondent: Mr Reilly

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. The application is dismissed.

2. The Applicant is to pay the Respondent’s costs fixed in the sum of $4,500.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3530 of 2004

SZFDT

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

Application

1. This is an application for a review of a decision of the Refugee Review Tribunal which was made on 18 October 2004. The decision was handed down on 10 November 2004. 

2. The decision of the Refugee Review Tribunal was to affirm the decision of a delegate of the Minister not to grant the applicant a protection visa. 

3. The applicant has filed and served an amended application dated

   
   

   21 March 2005.  It is on this document that he relies in this hearing.  The respondent has filed and served a written outline of submissions on 6 May 2005. 

Background:

1. The applicant is a citizen of Pakistan.  He arrived in Australia on

   
   

   1 February 2004.  On 27 February 2004 he applied for a protection visa.  A delegate of the Minister refused that application on 18 May 2004.

2. On 15 June 2004, the applicant lodged his application for review with the Refugee Review Tribunal. 

3. The Tribunal wrote to the applicant, inviting him to attend a hearing on 6 September 2004.  The applicant attended that hearing and gave evidence. 

4. On 18 October 2004 the Tribunal made its decision. 

5. The applicant arrived in Australia as a temporary business visitor. 

   
   

   He travelled on a Pakistan passport issued in his own name.  He said that he speaks, reads and writes Urdu and Punjabi and that he reads and writes English.  He did not have difficulties obtaining a travel document and had left Pakistan legally. 

6. In his application the applicant stated that he would be killed or kidnapped if he were to return to Pakistan. 

7. In a later statement, in April 2004, the applicant said that he belonged to the Pakistan Muslim League.  He said he had worked for different political personalities of that party. 

8. He said that when the army dissolved the PML government in October 1999, there were efforts to force him to join the Pakistan Muslim League QA.  When he refused they had threatened him on the telephone and on one occasion he was beaten up.

9. He decided to leave Pakistan and travelled to Australia.  He referred to a statement in an Urdu language newspaper in Australia of 20 April 2004, which he states includes a statement against him by a person in Australia, and that he would be killed if he returned to Pakistan.

10. The applicant said that he was an active member of the party and had worked for a national assembly member, Mr Ghulam Datsgir Kahn.  He said that he had been followed by government agencies and that friends in Pakistan had warned him against turning. 

11. He has been issued with a new Pakistan passport.

12. The applicant said that when he arrived in Australia he had been given the name of a man called Malik.  He said he stayed with Malik for a week.  He claims that Malik had kept his passport and demanded $AUS10,000 from him. 

13. He claims that when he did not pay the $10,000, Malik published an item in a newspaper.  He was assisted by someone who was able to get his passport back for him.  He approached the Pakistan Consulate General and told the Consulate General about the activities of

    
    

    Mr Malik. He claimed that the Consulate General would send a fax informing the Pakistan authorities.  He has obtained, as I said, a new Pakistani passport. 

14. The applicant attended the hearing on 6 September.  He gave oral evidence and was asked a number of questions by the Tribunal member.  He was questioned by the Tribunal as to why the printed card which he received spelled the party's name incorrectly. 

15. The applicant gave a considerable amount of evidence to the Tribunal, including that he had had a bad experience with the PMLQ for six months before he left Pakistan.  He said that he had been locked up and tortured.  He asked for a two-week extension of time to provide further material to the Tribunal.  That extension was granted, and on 5 October 2004 the applicant forwarded some further material to the Tribunal. 

16. The Tribunal handed down its decision on 10 November.  The Tribunal referred to the applicant's information about the man, Malik. 

    
    

    The Tribunal was not satisfied that Malik's activities indicated any actual persecutory interest in the applicant by people in Pakistan, but rather reflected attempts by Malik to put pressure on the applicant in order to extort money from him. 

17. The Tribunal noted that the matters of the man, Malik, and the applicant's complaint about him, were being investigated by the authorities both in Australia and in Pakistan. 

18. The Tribunal found that there was little in the applicant's evidence to support the claim that agencies of the Pakistan government were hostile toward the applicant. 

19. The Tribunal noted that the applicant was able to approach the Pakistan consular authorities in Australia, in order to obtain a new passport, and received a sympathetic hearing and undertakings to look into complaints about a Pakistani citizen in Australia. 

20. The Tribunal was not satisfied that the applicant had been targeted by the Pakistani government, or faced a real chance of persecution from them.  The Tribunal was not satisfied with all of the applicant's evidence, particularly his documentary evidence. 

21. Whilst the Tribunal accepted that the applicant had experienced some harassment from student members, the Tribunal did not accept that he was kidnapped.  The Tribunal was satisfied that the applicant did not have a significant political profile, but was simply a clerical employee.  The Tribunal considered relevant country information. 

22. The Tribunal did not accept that the applicant had any political role beyond his own local district. 

23. The Tribunal did not accept that the applicant was being targeted or persecuted at a national level, or by senior members of the PML.

    
    

    The Tribunal was satisfied that any difficulties encountered by the applicant related to his local area and not to a wider or national problem, and did not involve his being targeted by the authorities. 

24. The Tribunal did not accept that the applicant has been, or is, at risk generally in Pakistan, or that he would be targeted and pursued nationally by local political opponents and others.

25. The Tribunal was satisfied that the applicant could avoid any particular local threat, or any harm that he feared, by moving to live somewhere else in Pakistan.

26. The applicant filed an amended application.  He gave the following grounds of review. 

    The Refugee Review Tribunal failed to provide the applicant particulars of the information that the RRT considered would be reason, or part of reason for affirming the decision under review.  The applicant claims that he was denied procedural fairness.  The Tribunal made a jurisdictional error when it misapplied the implied and express meaning of term "well founded fear" from the UN Refugee Convention. 

27. The applicant claimed that the Tribunal member asked him many irrelevant questions at the hearing, and that the hearing was more formal than he expected.  He claims that the Tribunal made its decision before the hearing.  He believes that he was denied natural justice, because the member of the Tribunal formed the opinion before the hearing. 

28. The applicant claims that the Tribunal did not give sufficient weight to his evidence, and wrongly refused to accept the validity of certain documents. 

29. The applicant claimed that the Tribunal had made an error in finding that he could safely relocate within Pakistan.  He said:

    The applicant claims that the Tribunal failed to understand the cumulative effect of harm he suffered at home district. 

    
    

    The Tribunal undermined the effect and potentiality of harm, and made a jurisdictional error by not understanding the effect of harm.

30. The applicant pointed out that at the time of the hearing he was very much confused and depressed.  In answer to a question from the bench, the applicant said that he had not sought medical advice about his confusion or depression. 

31. I heard oral submissions from the applicant during the hearing.  He complains that the Tribunal did not give sufficient weight to his evidence.  He said that the Tribunal made its decision in his claim very quickly.  Against this, Mr Reilly of counsel pointed out that the hearing took place on 6 September 2004 but the Tribunal did not make its decision until 18 October 2004. 

32. I asked the applicant about the relocation issue within Pakistan.  He said the Tribunal had not looked carefully at his claim.  He said that the Tribunal had advised him that he could go to some other places in Pakistan where he would not have a well founded fear of persecution. 

33. I asked the applicant about his claim that he had been denied procedural fairness.  He explained that he did not feel that the Tribunal had made the decision fairly.  He agreed that he had attended the RRT hearing and had given evidence.  He had provided documentary evidence as well.

34. I find it difficult to see how the procedure adopted by the Tribunal was unfair.

35. I asked the applicant about his claim that he had been denied natural justice.  His reply to that was to refer to the failure of the Tribunal to give adequate weight to his evidence. And the fact that the Tribunal rejected all of his documents.  Again, this would appear to me to be a complaint about factual matters.

36. In the written submissions, prepared by counsel for the respondent, I note that it is claimed that the applicant was unsuccessful because of the view that the Tribunal had taken in the facts, in particular its rejection of the applicant's claim to have been persecuted in the past, and its finding that the applicant could access state's protection or relocate. 

37. It was submitted that these findings were open to the Tribunal on the basis of the evidence before it.  In particular it was submitted that the decision of the Tribunal, or the conclusion of the Tribunal, the applicant could safely relocate within Pakistan, is a correct application of the decision in Randhawa v MILGEA, (1994) 52 FCR 437.

38. The respondent submitted, and I believe correctly, that the relocation decision was a finding of fact, as was the finding that the applicant could access state protection. 

39. The respondent also submitted that the Court cannot review the merits of the Tribunal's decision.  See MIEA v Wu Shan Liang (1996) 185 CLR 259. This submission is correct.

40. It is equally correct for the respondent to submit that there is no error of law, let alone a jurisdictional error in the Tribunal making a wrong finding of fact.  See Abebe v Commonwealth, (1999) 197 CLR 510 at 137.

41. In my view there is no evidence that the applicant was denied procedural fairness, and I note that I have been referred to the provisions of s.422B of the Migration Act. There is no evidence that the applicant was denied natural justice.

42. The applicant's claim that the Tribunal did not inform him about the information that it considered would be the reason, or part of the reason, for affirming the decision under review, I am not satisfied that that this can be made out.

43. Section 424A of the Act does not require the Tribunal to put its thought processes or potential factual conclusions to the applicant.  There is no evidence that the Tribunal considered anything other than the material put to it by the applicant, and the independent country information.  

44. The amended application is seeking a merits review, but as was said in Wu Shan Liang's case, the Court has no power to take such a step.

45. The applicant also claims the Tribunal had a closed mind.  This is a serious allegation, as counsel for the respondent points out in his written submissions.  He also submits, and I believe correctly, that there is no basis for the Court to make such a finding, just because the Tribunal did not accept the applicant's claims. 

46. I am referred to SBBA v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC page 90 at [15].

47. There is no reviewable error.  I find no jurisdictional error.  The decision is quite clearly a privative clause decision, as is set out in

    
    

    s.474 of The Migration Act.

48. I note that it has become routine for applicants to claim a denial of natural justice or a denial of procedural fairness.  In many cases, no evidence is provided at all.  It is quite clear that baseless allegations of failure to provide procedural fairness or natural justice will not be successful before this Court. 

49. The application is dismissed. 

50. There is an application that the applicant should pay the respondent's costs.   The applicant has been unsuccessful and costs follow the event.  In my view, this is an appropriate matter for an order for costs.

51. The respondent seeks a lump sum of $4500.  This is well within the range envisaged by schedule 1 of the Federal Magistrate Court rules. 

    
    

    It is clear that the respondent is only seeking a modest amount of costs, and it is an amount that I believe it is appropriate to award.

52. I note that the applicant arrived late today.  This will not be in any way reflected in the costs order, as even though the Court started late we have managed to finish the hearing within the time allocated.

53. I would make it clear for the future, although it does not apply to this case, that apart from routine claims of denial of procedural fairness or natural justice, there also appears to be a trend towards allegations of impropriety on the part of the Tribunal.  In this case I do note that there was an allegation that the Tribunal had formed its decision before the hearing took place.

54. This is a serious allegation, as counsel has pointed out, as it alleges personal fault on the part of the Tribunal member.  I have already found that there is no evidence to support such a claim in this case.

55. It may well be that in the future, applicants who bring baseless claims involving allegations of fault on behalf of the Tribunal, may be said to do so at their peril.  Such an application, if it is not established, would not only be dismissed with costs but in serious cases may even lead to an order for indemnity costs. 

56. I have not made an order for indemnity costs in this case, as it is not appropriate.

57. I will make it clear, however, in future, that in an appropriate case such an application may well be considered.

I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  S. Polley

Date:  20 May 2005