SZFDT v Minister for Immigration and Multicultural and Indigenous Affairs
[2005] FCA 1106
•11 AUGUST 2005
FEDERAL COURT OF AUSTRALIA
SZFDT v Minister for Immigration & Multicultural & Indigenous Affairs
[2005] FCA 1106
MIGRATION – no issue of principle
SZFDT v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
NSD 864 OF 2005
CONTI J
11 AUGUST 2005
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 864 OF 2005
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
SZFDT
APPELLANTAND:
MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
RESPONDENTJUDGE:
CONTI J
DATE OF ORDER:
11 AUGUST 2005
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant is to pay the respondent’s costs assessed at $2,500.00.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 864 OF 2005
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
SZFDT
APPLICANTAND:
MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
RESPONDENT
JUDGE:
CONTI J
DATE:
11 AUGUST 2005
PLACE:
SYDNEY
REASONS FOR JUDGMENT
This is an appeal from the orders and reasons for judgment of Scarlett FM, made and given on 11 May 2005, which dismissed the appellant’s application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’) handed down on 10 November 2004 which affirmed a decision of a ministerial delegate refusing the appellant’s application for a protection (Class XA) visa.
The appellant is a citizen of Pakistan who arrived in Australia on 1 February 2004. He lodged an application for a protection visa on 27 February 2004. The appellant travelled to Australia on a Pakistani passport, issued in his own name, as a temporary business visitor. He did not claim to have experienced difficulties obtaining a travel document and had left Pakistan legally. In his application for a protection visa, the appellant asserted without further detail that he would be killed or kidnapped if he were forced to return to Pakistan. In a later statement received by the Minister in April 2004, the appellant claimed that he belonged to the Pakistan Muslim League (Nawaz) (‘PML (N)’) and that he had worked for different political personalities of that party.
The appellant further claimed in the April 2004 written statement that when the army dissolved the PML (N) government in October 1999, there were efforts to force him to join the Pakistan Muslim League Quaid-e-Azam (‘PML (Q)’). When he refused ‘they’ had threatened him on the telephone and on one occasion he was physically assaulted. The appellant claimed that he decided to leave Pakistan and travelled to Australia.
The appellant also claimed that a person, who is the coordinator of the PML (Q) in Australia, demanded $10,000.00 from him, and in the absence of payment threatened him with return to Pakistan. The appellant referred to a statement in an Urdu language newspaper published in Australia dated 20 April 2004, which he claimed contained a statement against him made by that person. The appellant repeated that he would be killed if he returned to Pakistan or killed by the PML (Q) in Australia if he did not return to Pakistan.
In an additional statement accompanying his application for review to the Tribunal, the appellant claimed that he was an active member of the PML (N) and had worked for a national assembly member, Mr Ghulam Datsgir Khan (‘Mr Khan’). The appellant claimed that he had been followed by government agencies as well as by an employee of the PML (Q). The appellant further claimed that his friends in Pakistan had warned him against returning because government agencies had captured many PML (N) employees and he would be arrested for having worked for the PML (N). The appellant submitted some additional documents to the Tribunal, including what appeared to be a party membership card bearing his name and photograph but which, the Tribunal concluded, had the name of the PML (N) misspelled, as well as that of its Central Committee.
The appellant attended a hearing before the Tribunal on 6 September 2004, during which the Tribunal explored his claims in detail. In its reasons for decision, the Tribunal divided those claims into two sections: the appellant’s claims emanating from his treatment in Australia by ‘Malik’ and those claims associated with the appellant’s fear of persecution upon his return to Pakistan.
The appellant told the Tribunal that when he arrived in Australia he had been given the name of a man called Malik. He said that he stayed with Malik for a week, and reiterated his claim that Malik had kept his passport and demanded $10,000 from him in exchange for arranging for the appellant to live peacefully in Australia. When the appellant did not pay the money, he claimed that Malik published an item in an Urdu-language Australian newspaper that painted the appellant in a negative light. The appellant was able to get his passport back from Malik with the assistance of an undisclosed third party. The appellant then said that he approached the Pakistan Consulate General and told the Consulate General about the activities of Mr Malik. The appellant obtained a new Pakistani passport, which he exhibited to the Tribunal at the beginning of the hearing. The Tribunal put to the appellant that his story suggested that Mr Malik had not been acting on behalf of Pakistani authorities, but rather had been ‘running his own extortion racket’. The appellant agreed with the Tribunal’s conclusion.
The appellant further claimed to the Tribunal that the current political climate was very dangerous to him in Pakistan because the PML (Q) were in government and he would be targeted by them because of his former employment as personal assistant to a PML (N) national assembly member, Mr Khan. The Tribunal put to the appellant that he no longer worked for that man but the appellant maintained that if he were to return to Pakistan, he would work for him again. The appellant stated that he had been member of the PML (Q) for a six month period leading up to his departure and had worked for them as a full-time volunteer during that period. The appellant said that he had gone to work for the rival PML (Q) because student members of that party has locked him up and tortured him in an attempt to obtain information about his boss, Mr Khan. Rather than reporting this incident, the appellant worked for the PML (Q) to ensure his protection. The appellant claimed that this was the advice given to him by his boss, Mr Khan. The Tribunal questioned the appellant about those claimed experiences in Pakistan as well as to why the printed PML (N) membership card that he received contained prominent spelling errors. The Tribunal also pointed out to the appellant inconsistencies in the letter allegedly written by Mr Khan about the appellant and it put to him country information to the effect that members of the PML (N) were not being targeted in Pakistan now.
The Tribunal gave the appellant a fortnight to provide additional documents, information or submissions in support of his claims. The appellant subsequently asked for, and was granted, a further two-week extension of time to provide material to the Tribunal. On 5 October 2004 the applicant forwarded some further material to the Tribunal.
The Tribunal’s Decision
In respect of the appellant’s claims regarding what had happened to him in Australia, the Tribunal recorded that the activities of Malik, and the appellant's complaint about him, were being investigated by the authorities both in Australia and in Pakistan. The Tribunal was not satisfied that Malik's activities indicated any actual persecutory interest in the appellant by people in Pakistan, but rather reflected attempts by Malik to extort money from him.
Regarding the appellant’s claims of his experiences in Pakistan, the Tribunal found that there was little in his evidence to support the claim that agencies of the Pakistan government were hostile toward him. The Tribunal observed that he 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. The Tribunal was not satisfied that the appellant had been targeted by the Pakistani government, or faced a real chance of persecution from its agencies. The Tribunal was also not satisfied with some of the appellant's evidence, particularly the documentary evidence provided by him, and accorded it little or no weight as evidence corroborative of the appellant’s claims.
The Tribunal further found that the appellant did not have a significant political profile, and that he was simply a clerical employee who at some point had switched from PML (N) to PML (Q), as many Pakistanis had done since the change in government. Whilst the Tribunal was prepared to accept that the appellant had experienced some harassment from student members in his local area, the Tribunal did not accept that he was kidnapped owing to the absence of detail in the appellant’s claims in this regard.
The Tribunal did not accept that the appellant had any political role beyond his own local district, or that he was being targeted or persecuted at a national level, or by senior members of the PML. The Tribunal also did not accept that the appellant has been, or is, at risk generally in Pakistan, or that he would be targeted and pursued nationally by local political opponents or others. The Tribunal was satisfied both that state protection was available to the appellant were he to experience any further harassment in his local area, and that the appellant could, in any event, avoid any particular local threat, or any harm that he feared, by moving to live somewhere else in Pakistan. Accordingly the Tribunal concluded that the appellant did not have a well-founded fear of persecution upon his return to Pakistan and was therefore not a person to whom Australia owed protection obligations.
The appellant’s application to the Federal Magistrates Court for review of the Tribunal’s decision and the grounds raised in relation thereto
The amended application filed in the proceedings before the Federal Magistrate pleaded the following ground(s) of review (read literally):
‘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 and from the UN refugee Convention.’
In his reasons for judgment, Federal Magistrate Scarlett detailed the appellant’s claims in support of the ground(s) of review pleaded in the following terms:
‘30.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 [sic] opinion before the hearing.
31.The applicant claims that the Tribunal did not give sufficient weight to his evidence, and wrongly refused to accept the validity of certain documents.
32.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.”
33.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.’
During the hearing, his Honour explored the appellant’s claims further. Ultimately, however, his Honour accepted submissions made on behalf of the respondent Minister to the following effect:
(i)the appellant was unsuccessful before the Tribunal because of the view that the Tribunal had taken of the facts, including its rejection of the appellant's claim to have been persecuted in the past, and its finding that the appellant could access state protection or relocate;
(ii) those factual findings were open to the Tribunal on the basis of the evidence before it;
(iii)the Court cannot review the merits of the Tribunal's decision: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259;
(iv) there was no basis for the allegation that the appellant was denied procedural fairness;
(v)the appellant’s allegation that the Tribunal had a closed mind was a serious allegation that was made without any proper basis in this case, apparently on the footing that the Tribunal did not accept the appellant's claims;
(vi)the amended application properly construed is seeking impermissible merits review; and
(vii)there is no error of law, let alone jurisdictional error in the Tribunal making an incorrect finding of fact: Abebe v Commonwealth (1999) 197 CLR 510.
His Honour proceeded to dismiss the application, finding that there was shown to be no breach of the requirements of procedural fairness by the Tribunal.
The appeal to the Federal Court
The notice of appeal, filed by the appellant on 31 May 2005, contains the following grounds of appeal (read literally):
‘1.The Appellant filed an Application for Judicial Review against the decision of the Refugee Review Tribunal (The Tribunal) on 2 December 2004. The Appellant filed fully particularised Amended Application on 21 March 2005
2.The Appellant contended that the Tribunal failed to take into account his evidence particularly evidence in respect of his membership of the Pakistan Muslim League (N) to reach its decision. This act of the Tribunal amounts to jurisdictional error and the appellant denied Natural Justice. The Federal Magistrate failed to identify this error.
3.The Appellant contended in his Amended Application that the Tribunal took into account irrelevant considerations to reach to this decision including issue of relocation of the applicant within the country. The Federal Magistrate failed to identify this error.’
Pursuant to directions made on 29 June 2005, the appellant was required to file and serve written submissions no later than 14 days before the hearing date. The appellant failed to comply with this order. Furthermore, the appellant failed to attend today’s hearing and so was not able to provide the Court with any explanation of those grounds of appeal.
In the absence of any submissions explaining the purported grounds of appeal, the Minister relied upon the written submissions of counsel, which dealt with each ground of appeal seriatim.
The Minister submitted that at best, the first ground of appeal was a statement of fact(s), and was not a viable ground of appeal. The Minister correctly submitted that no error is alleged under this ground on the part of the Federal Magistrate or, indeed, on the part of the Tribunal.
Under the second ground of appeal, the Minister contended that the appellant asserted that the Federal Magistrate erred in failing to identify an error in the Tribunal’s decision, that being a failure to take into account the appellant’s evidence in respect of his membership of the PML (N). The Minister submitted that this ground was fundamentally misconceived, in that much of the Tribunal’s decision was preoccupied with the appellant’s claims made in respect of his involvement with the PML (N) and that this ground of appeal seeks, put at its highest, to challenge the Tribunal’s decision not to accept the appellant’s claims made in that regard. The Minister further submitted that the Tribunal made findings of fact, as it was required to do in respect of the appellant’s claims, and that even if some of those findings were wrong, that would not, in itself, amount to legal error.
The Minister pointed out that the relevant statutory criteria requires that at the time of the decision the Minister, or on review the Tribunal, be satisfied that an applicant is a person to whom Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees: see ss 5(1), 36 and 65(1) of the Migration Act 1958 (Cth) (‘the Act’) and paragraph 866.221 of Schedule 2 to the Migration Regulations1994 (Cth). On review of an adverse decision by a delegate of the Minister, such as here, it is for an applicant to satisfy the Tribunal that all of the statutory elements are made out: Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 579.
The Minister accepted that ‘proof’ of persecution in the context of an application for a protection visa is a matter of some complexity, and that a liberal attitude on the part of the decision-maker is called for, since a person who claims to be a refugee may have difficulties in proving his allegations: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451. However the Minister also pointed out the following matters of principle:
(i) the merits of a case, including matters of weight to be given to items of evidence and the credibility to be attached to witnesses, are for the Tribunal to determine: Wu Shan Liang at 272 and 291-292;
(ii) the Tribunal does not have to possess rebutting evidence before holding that a particular assertion is not made out: Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348;
(iii) nor is the Tribunal required to accept uncritically any and all claims made by an applicant: Randhawa at 451; Guo at 596; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70.
Ultimately, so the Minister submitted, the Federal Magistrate was correct to observe that the appellant was essentially seeking to review the Tribunal’s decision on the merits, and had failed to identify any jurisdictional error by this ground.
The third ground of appeal was submitted by the Minister to be similarly misconceived. The issue of ‘relocation’ was submitted to not be an irrelevant consideration, referring thereby to a passage from the reasons for judgment of the Full Court in Randhawa appearing at pages 440-441:
‘Although it is true that the Convention definition of refugee does not refer to parts or regions of a country, that provides no warrant for construing the definition so that it would give refugee status to those who, although having a well-founded fear of persecution in their home region, could nevertheless avail themselves of the real protection of their country of nationality elsewhere within that country. The focus of the Convention definition is not upon the protection that the country of nationality might be able to provide in some particular region, but upon a more general notion of protection by that country. If it were otherwise, the anomalous situation would exist that the international community would be under an obligation to provide protection outside the borders of the country of nationality even though real protection could be found within those borders.’
In the event that the appellant merely sought to cavil with the Tribunal’s relocation finding, the Minister repeated its submissions made in respect of the second ground of appeal, but observed also that the Tribunal’s finding was an alternative finding, the Tribunal having concluded that the appellant would be able to avail himself of State protection were he to face harassment similar to that claimed to be likely to occur upon his return to Pakistan.
I agree with the Minister’s submissions and with the reasons for judgment of Scarlett FM. To add further reasons would involve no more than repetition. The appellant has not been able to put forward anything of significance on this appeal not already put in substance to and correctly rejected by Scarlett FM. In those circumstances the appeal must be dismissed and the appellant is ordered to pay the respondent’s costs assessed at $2,500.
I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti. Associate:
Dated: 11 August 2005
The appellant did not appear Counsel for the Respondent: A Markus, a solicitor Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 11 August 2005 Date of Judgment: 11 August 2005
0
7
0