SZFEA v Minister for Immigration
[2005] FMCA 853
•6 May 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZFEA v MINISTER FOR IMMIGRATION | [2005] FMCA 853 |
| MIGRATION – Refugee – non–compliance – no real question to be tried. |
| Migration Act 1958 s.91R Federal Magistrates Court Rules.13.10(a), 21.02(2)(a) |
| Minister for Immigration Multicultural and Indigenous Affairs v Khawar and Others [2002] 187 ALR 574 |
| Applicant: | SZFEA |
| Respondent: | MINISTER FOR IMMIGRATION, MULTICULTURAL AND INDIGENOUS AFFAIRS |
| File Number: | SYG 3548 of 2004 |
| Judgment of: | Nicholls FM |
| Hearing date: | 6 May 2005 |
| Date of Last Submission: | 6 May 2005 |
| Delivered at: | Sydney |
| Delivered on: | 6 May 2005 |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondent: | Ms. A. Hawkes |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The application is dismissed pursuant to rule 13.10(a) of the Federal Magistrate Court Rules.
The applicant pay the respondent's costs set in the amount of $2500 pursuant to rule 21.02(2)(a) of the Federal Magistrate Court Rules.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3548 of 2004
| SZFEA |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(Revised from Transcript)
By application to this Court filed on 6 December 2004 the applicant sought review of a decision of the Refugee Review Tribunal (“the Tribunal”) made on 19 October 2004 and handed down on
10 November 2004 affirming a decision of a delegate of the respondent Minister made on 8 June 2004 to refuse a protection visa to the applicant.
The applicant is a citizen of Pakistan, who arrived in Australia on
2 February 2004 and applied to the respondent Minister's Department for a protection visa on 5 March 2004. His claims centre around a dispute with his employer in Kuwait, false claims made against him and police in Pakistan who came looking for him when he returned to his country.
On the first Court date in this matter on 15 December 2004 the Court made orders by consent that (amongst others):
“2. The applicant file and serve an amended application giving particulars of each ground of review relied upon by 15 March 2005.”
The originating application contained no real grounds for review. The attached statement was a restatement of claims before the Tribunal and the part headed “My Claims” were claims as to why the applicant says he is a refugee. The Court also made an order that the respondent may file (if appropriate) a summary dismissal application after the date for the filing of an amended application if no amended application had been filed. As no amended application had been filed by the due date, the respondent sought, and was given, a date for the hearing of a summary dismissal application.
An amended application was filed yesterday 5 May 2005 outside the due date, a copy of which was provided to the Court this morning. The applicant has raised three complaints in his amended application:
“(1) … the Tribunal failed to apply Australian Law and United Nation Refugee Convention properly and thus committed jurisdictional error:
Particulars
(a)Failed to apply Sec 91R(2)(a)(b)(d) and (f) of the Migration Act 1958 properly to the facts of the claim and the applicant’s circumstances.
(b)Failed to apply definition of the Refugee Convention in respect of particular social group.
(2)The Tribunal ignored the applicant’s oral evidence that:
Particulars
(a)The applicant detained by the Kuwaiti Police for 3 days.
(b)The applicant received threats from the agent.
(3) The Tribunal took into account irrelevant considerations and make erroneous findings which is improper exercise of the power conferred by the Migration Act.
Particulars
(a) Findings on page 72 of the Court Book that: the demand and threats from the agent in Pakistan relate to the individual personal and financial circumstances and do not arise for any Convention reason.
(b)The applicant travelled to Kuwait before coming to Australia.
(c) The Tribunal failed to investigate the applicant’s evidence of fear that he would be persecuted.”
Before me today, Ms. A. Hawkes for the respondent pressed dismissal of the application on the basis that the amended application disclosed no reasonable cause of action in that the amended application lacks particularity and does not show how the Tribunal failed in assessing the applicant’s claims. I understood that she sought dismissal pursuant to Rule 13.10(a) of the Federal Magistrates Court Rules.
For the respondent to succeed it must be plain and obvious that the grounds that the applicant has put forward, or the grounds for the application, are unarguable or that it is a hopeless case that would fail if it were to go to trial. There is relevant case authority in support.
In going through the material I have also kept in mind that the Court record shows that the applicant has had the benefit of legal advice under the Court’s Legal Advice Scheme, and that on 29 January 2005 the applicant did receive advice from a lawyer on the panel of that Scheme. At the hearing before me today the applicant also told me that he had the benefit of assistance from friends, although it is not clear whether they are legally qualified or not, and that they assisted him with the application. Notwithstanding all that, the applicant is legally unrepresented before me today, and in those circumstances the Court should independently consider whether an arguable case based on the material could be made out by the applicant.
Ground 1 asserts that the Tribunal failed to properly apply Australian Law, and the definition of the Refugee Convention, to the facts of the applicant’s claims. The applicant asserts that it failed to apply s.91R(2) to the facts of the applicant’s claim and failed to apply the Refugee definition in respect of a particular social group.
1)The Tribunal set out its understanding of the definition of Refugee as found in Article 1A(2) of the Refugee Convention and the connection of relevant Australian law in understanding this definition. The Tribunal makes specific reference to s.91R in its decision record. [see CB 66.5 to CB 68.2] From what is set out, the Tribunal clearly understood the appropriate test and the relationship between the Migration Act and the Convention.
2)Having made the assertion the applicant has not said how the Tribunal has failed to apply s.91R or the Convention to his circumstances.
3)Before me, the applicant said that the friends who helped him draft the “Particulars” in his application told him that s.91R applied because he had told them that he did not have a job, did not have money to pay his debt and the important fact that his life was in danger. Beyond this however the applicant (nor his friends through the assistance provided in drafting the particulars) was not able to say how the Tribunal had failed to make the proper application.
4)I explained to the applicant that there is a difference between his making claims and expecting the Tribunal to find that he is a refugee because he has made claims, and a situation where the Tribunal looked at but found these claims did not meet the test of refugee.
5)In any event at CB 71.8 the Tribunal actually did consider whether harm might arise by reason of the applicant’s membership of a relevant particular social group. The Tribunal found that it was not satisfied that it could even formulate a social group of which the applicant may be a member. Having made this finding the Tribunal did not need to go on and apply the definition in respect of a particular social group. In fact it could not do so because of the nature of its finding.
6)In any event as Ms. Hawkes for the respondent submitted, the significant finding by the Tribunal after having looked at the applicant’s circumstances and the applicant’s fear of harm was that set out at CB 72.1, that the applicant’s difficulties do not arise for a Convention reason. Without this Convention nexus, the link of the applicant’s fear of harm to a Convention reason, his application cannot succeed.
Ground 1 clearly fails as the Tribunal did look at the issue of harm as it applied to the applicant’s circumstances and did look to see whether harm may arise by reason of the applicant’s membership of a social group [see CB 71]. The Tribunal ultimately said that it is not satisfied that it could even formulate a social group of which the applicant may be a member. But in any event it was not satisfied that a Convention nexus existed. I can see no error in how the Tribunal has approached its task in this regard.
The second ground complains that the Tribunal ignored the applicant’s evidence that he was detained by Kuwaiti police for 3 days and that he received threats from an agent. Both assertions are factually incorrect as the Tribunal did not ignore the evidence given by the applicant.
1)In relation to the claim that he was detained by Kuwaiti police for three days the Tribunal says at CB 70, in the context of discussing the applicant’s dealings with, and arrest by Kuwaiti police, that:
“The applicant stated that he was detained for two or three days, and then released on bail.”
Clearly the Tribunal noted the claim made by the applicant.
It dealt with this saying in its “Findings and Reasons”:“Difficulties he has encountered, or may encounter, in Kuwait are relevant only in so far as they form a context for fears in relation to Pakistan.”
The Tribunal did not need to deal with this claim any further than that Pakistan is the country of nationality against which under the Convention the fear of persecution is to be assessed. In any event, before me the applicant clarified that his real complaint was not that the Tribunal ignored his claims but that it did not give them the weight that they should have. There is nothing before me to show the Tribunal erred in this regard.
2)The second complaint under this ground is that the Tribunal ignored his evidence that he received threats from the agent in Pakistan. The Tribunal clearly set out the applicant’s claims in some detail in its record of decision at CB 70 and dealt with this issue at CB 71.3:
“In Pakistan the applicant's stated fear is in relation to a particular agent who has threatened to harm the applicant.”
The Tribunal found that in relation to the claimed threats by the agent that this did not amount to persecution, but in any event there was nothing before the Tribunal to show that he could not obtain the normally available protection from the authorities. It is quite clear that the Tribunal did not ignore the applicant’s complaint that he had received threats from the agent. To the extent that the applicant uses the word “ignore” in the sense that the Tribunal did not accept his claim, then as the findings were open to the Tribunal before it, this amounts to a request for impermissible merits review.
The applicant’s third ground is that the Tribunal took into account irrelevant considerations or made erroneous findings which were an improper exercise of the “power conferred by the Migration Act”.
1)“Particular 3(a) refers to a finding at CB 72 that the demands and threat of the agent relate to individual personal and financial circumstances and not for any Convention reason. This is the no-Convention nexus finding to which I referred earlier. The applicant has not particularised how or why the Tribunal was in error in making that finding. Before me the applicant said that the Tribunal made a mistake in saying that the harm that he feared was not for a Convention reason. But was unable to say why the Tribunal was wrong in making that finding. At best it seems to be an expression of disagreement with the finding, and an invitation for the Court to undertake a merits review, which is of course beyond the Court's power in this matter.
2)The applicant’s second example under this assertion is to complain about the Tribunal’s statement that the applicant travelled to Kuwait before coming to Australia. At best, as Ms. Hawkes submitted, it would seem that the applicant is claiming that this was an irrelevant consideration. The respondent's submission was that this was clearly not an irrelevant consideration and had to do with the applicant's claims and in particular to his returning to Kuwait to investigate the situation with the Kuwait police and whether he could return to work there. Before me the applicant complained that he was asked several questions by the Tribunal about Kuwait. He said: “they asked me several times during the hearing why I went to Kuwait.” He submitted that the Tribunal suggested that his life was in danger in Kuwait and asked for the reason that he travelled to Kuwait again. He told me that he gave the reasons for travelling to Kuwait, but he felt that the Tribunal was still concerned about it before making the decision.” The Tribunla record confirms that it asked the applicant about travel to Kuwait. But then in these circumstances there is nothing in it to show that this was significant in its decision. The Tribunal was clearly and properly focused on Pakistan and explained how it dealt with the relevance of Kuwait.
3)The third complaint in this ground:
“The Tribunal failed to investigate the applicant's evidence of fear that he would be persecuted.”
Again, this seems just to be a general un-particularised disagreement with the Tribunal's ultimate finding, and would seem simply to invite merits review. The respondent submits that the Tribunal did in fact deal with all of the applicant's claims and that there is no jurisdictional error in the decision. The Tribunal came to conclusions that were reasonably open to it on the material before it and correct in law.
The applicant's reasons for claiming to be a refugee are first set out at CB 21. I note from the decision record of the Minister’s delegate and in particular at CB 43, that the delegate found, in relation to the applicant's protection visa application, that the circumstances described by the applicant have not arisen because of his race, religion, nationality, political opinion or because of his membership of a particular social group. The delegate found that his claimed circumstances have arisen as a result of criminal extortion attempted against him in Kuwait by his employer, and the action taken by that employer when the applicant threatened to report him to the authorities. The record then continues at CB 43:
“The applicant therefore makes no claims which are related to the Convention and he has presented no evidence which prompts further enquiry as to whether or not his circumstances may be Convention related.”
The court book shows, at CB 38, that the applicant was sent a copy of that decision record. The applicant was clearly on notice that his claims to that date did not bring him within the Refugee Convention. At CB 45 to CB 48 the applicant's application for review by the Tribunal is reproduced. At CB 47 the applicant says:
“I am not satisfied with the decision of the Department…I strongly believe that my case falls under the definition of refugee as defined under the Convention, I will file further submission later.”
There is nothing before me to show that anything further was filed before the Tribunal. The Tribunal wrote to the applicant on
7 September 2004, copy at CB 51, and the Tribunal put the applicant on notice that on the material before it, it was unable to make a decision in the applicant's favour. The applicant was invited to come to a hearing before the Tribunal to give oral evidence and present arguments in support of his claims. The applicant did appear before the Tribunal on 18 October 2004. The Tribunal in its record of decision records the applicant's claims, including claims made at the hearing before it.
The critical finding by the Tribunal is that contained at CB 72.1, and that is:
“The Tribunal is fully satisfied that any demands or threats from the agent in Pakistan relate to the individual, personal and financial circumstances, probably with criminal intent and do not arise for any Convention reason.”
The Tribunal did look at all the claims made by the applicant, including those made at a hearing before it. The Tribunal could not find a Convention connection with the applicant’s claims. This finding was clearly open to it on the material before it, and it gave reasons.
I discussed with the applicant the grounds that he has put forward in his amended application that was filed in the Court’s Registry yesterday, and a copy of which was provided to the Court this morning. He was provided with an opportunity to expand on the claims made. I am satisfied on the material before me that the applicant would not succeed, and that it is plain and obvious that these grounds would not succeed, if the matter were to go to a final hearing. It is clear that the applicant has been unable to satisfy the Tribunal that the harm that he fears does arise for any Convention reason. This is the critical finding of the Tribunal of which the applicant complains specifically by way of “ground 3(a)”. In looking at the material before me I can find no jurisdictional error in what the Tribunal has done and nor in fact did the applicant put anything forward beyond mere assertion to support his claims before the Court.
I should add specifically in relation to one issue, that of the applicant's complaint that the Tribunal failed to apply the Refugee Convention definition in respect of a particular social group. I have said earlier that the Tribunal did address this issue at CB 71 and found that it was not satisfied that there was any formulation based on the applicant's claims and circumstances which could be said to constitute a relevant particular social group in Pakistan, nor that the agent in Pakistan seeks to harm the applicant by reason of membership of such a group.
I could see no error in the way the Tribunal approached this issue and nor could I see any “Khawar type” [see Minister for Immigration Multicultural and Indigenous Affairs v Khawar and Others [2002] 187 ALR 574] situation in relation to harm threatened by a private individual. To succeed in a “Khawar type” situation it would be necessary to show that such harm is tolerated or condoned by the authorities or the police. In that regard the Tribunal specifically found that the applicant has not sought the normally available protection of the Pakistan authorities in relation to the alleged threats against him by the Pakistani agent and it said that there was no material before the Tribunal to indicate that the applicant could not do so.
I have listened carefully to the applicant this morning and have looked through the relevant material and am satisfied that this case would fail if it were to go to final hearing. The applicant has not put forward any reasonable cause of action in relation to the relief he seeks. Nor could I see any arguable case based on the material before me. On that basis I dismiss the application pursuant to rule 13.10(a) of the Federal Magistrate Court Rules.
RECORDED : NOT TRANSCRIBED
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Associate: Wagma Aziza
Date: 27 June 2005
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