SZFNA v Minister for Immigration
[2007] FMCA 1673
•26 September 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZFNA v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1673 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of Refugee Review Tribunal affirming decision not to grant protection visa – citizen of Pakistan claiming a well-founded fear of persecution by reason of homosexuality – where applicant told the court that he had not told the truth to the Refugee Review Tribunal – matter to be referred to MARA - no jurisdictional error. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.91R, 424A |
| Minister for Immigration & Ethnic Affairs v Wu Shan Liang 185 CLR 259 Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham 168 ALR 407 |
| Applicant: | SZFNA |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | ADG 314 of 2006 |
| Judgment of: | Scarlett FM |
| Hearing date: | 26 September 2007 |
| Date of last submission: | 26 September 2007 |
| Delivered at: | Sydney |
| Delivered on: | 26 September 2007 |
REPRESENTATION
| Applicant: | In Person |
| Solicitor for the Respondent: | Ms Watson |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The Application is dismissed.
The Applicant is to pay the First Respondent's costs fixed in the sum of $5,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
ADG 314 of 2006
| SZFNA |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
The Applicant, who is a citizen of Pakistan, asks the Court to set aside a decision of the Refugee Review Tribunal signed on 29th September and handed down on 19th October 2006. The Tribunal affirmed the decision of a delegate of the Minister not to grant the Applicant a Protection (Class XA) visa.
The Applicant had applied for a protection visa claiming to have a well founded fear of persecution in his native Pakistan on the basis of homosexuality. On 21st September 2004 a delegate of the Minister refused his application for a Protection (Class XA) visa and he applied to the Refugee Review Tribunal on 12th October 2004 for a review of that decision.
The Tribunal, differently constituted, affirmed the decision of the delegate on 2nd December 2004. A decision was handed down on 23rd December 2004. The Applicant then sought judicial review of that decision in the Federal Magistrates Court, and on 10th April 2006 a Federal Magistrate made orders by consent that a writ of certiorari issue quashing the decision of the Tribunal dated 2nd December 2004 and a writ of mandamus issue requiring the Tribunal to determine the matter according to the law.
Application for Review by the Refugee Review Tribunal
The Tribunal invited the Applicant to attend a hearing and the Applicant attended that hearing which took place on 18th August 2006. The Tribunal asked him about his claim which related to his allegation that he had been in a homosexual relationship and he feared that he would be harmed or mistreated not only by Muslim fundamentalists but also by the government and police. He told the Tribunal the authorities would not protect him because they hated homosexuality and homosexuals and he repeated that homosexuality is not permitted in Pakistan.
The Tribunal was not satisfied that the Applicant had a well founded fear of being persecuted for a Convention reason on the basis that the Tribunal did not accepted the credibility of his account. The Tribunal did not accept that he had a relationship with a man who worked in his father's business in Pakistan and did not accept that he had a homosexual relationship of any sort with any other men since then, whether in Pakistan or Australia.
The Refugee Review Tribunal Decision
The Tribunal did not accept that the Applicant had fled Pakistan because he feared being persecuted for reasons of his claimed homosexuality nor that he feared being persecuted because of his claimed homosexuality if he returned to Pakistan at that time or in the reasonably foreseeable future.
The Tribunal affirmed the decision not to grant the Applicant a Protection (Class XA) visa[1].
[1] See Court Book at page 114
Application for Judicial Review
The Applicant filed an application and an affidavit in support in the Adelaide registry of this Court on 21st November 2006. The proceedings were eventually transferred to this Registry.
In the application the Applicant seeks orders in the nature of certiorari to quash the Tribunal decision, in the nature of mandamus to seek an order requiring the Tribunal to determine the Applicant's application for a protection visa according to law and an order in the nature of a writ of prohibition against the First Respondent Minister not to take steps to enforce the decision of the Refugee Review Tribunal.
Grounds of Review
The Applicant set out four grounds in his application.
i)The Tribunal failed to comply with the Rules of Natural Justice.
ii)The Tribunal failed to apply the proper test to what amounts to a real chance of suffering persecution.
iii)The Tribunal committed jurisdictional error because it erred in its application as to what amounted to serious harm under s.91R(2) of the Migration Act.
iv)The Tribunal Member had already decided before the hearing on 18th August 2006 that the Applicant was not entitled to a protection visa, based on information the Tribunal had from the Applicant's original application.
The Applicant’s Submissions
The Applicant had not filed a written outline of submissions and was not willing or able to explain the nature of the grounds upon which he applied.
The Applicant told the Court in what was described by Ms Watson who appeared for the First Respondent Minister with refreshing honesty that he had not told the truth to the Refugee Review Tribunal and that his account of seeking protection because he feared persecution on the basis of homosexuality was in fact not the truth. He said that this was a story that had been concocted for him by his then migration agent who I note is Mr MD Zahirul Hoq Mollah.
I propose to refer a copy of this decision to the Migration Agents Registration Authority. I am not sure whether Mr Mollah is currently registered as a migration agent but in my view this is a matter that the MARA should investigate.
Ground 1:
As to the Applicant's four grounds, ground 1 claims that the Tribunal failed to comply with the rules of natural justice. There are no particulars in support of that ground and of course this is a matter to which s.422B of the Migration Act applies. There is no evidence of any breach of the natural justice hearing rule and the matters of concern to the Tribunal which were ultimately determinative were raised with the Applicant orally at the hearing and were the subject of an extensive letter issued under s.424A of the Migration Act. Even assuming that common law natural justice applies there has been no denial of it in this case.
Ground 2:
Ground 2 alleges that the Tribunal failed to apply the proper test to what amounts to a real chance of suffering persecution. As was submitted by Ms Watson on behalf of the Minister, this ground is not relevant to the decision. The Tribunal properly set out the test at page 108 of the Court Book but in any event the Tribunal had rejected the Applicant's claim on the grounds of credibility, rightly as it turned out. Therefore there was no need to apply the real chance test. Ground 2 therefore fails.
Ground 3:
Ground 3 claims that the Tribunal erred in its application as to what amounts to serious harm under sub-section 91R(2) of the Act. The Tribunal rejected the Applicant's claim on credibility grounds and therefore was not called upon to apply the provisions of sub-section 91R(2) although at page 107 of the Court Book the Tribunal did refer to it.
Ground 4:
Ground 4 complained that the Tribunal already decided before the hearing on 18th August 2006 that the Applicant was not entitled to a protection visa based on information the Tribunal had from the Applicant's original application. There were no particulars that had been advanced in respect of this ground. If it is an allegation of actual or apprehended bias there are no particulars of that nor is there any evidence of it, nor is anything disclosed in the material before the Court which would lead to any finding of bias whether actual or apprehended.
The First Respondent’s Submissions
If as is suggested by Ms Watson for the Minister, it is intended to be a criticism of the Tribunal in relying on information in the protection visa application this information was in fact the subject of a letter under s.424A of the Act. The Tribunal satisfied its obligation under s.424A before relying on the information as part of the reason why the decision under review was affirmed.
In any event, this is a decision that was clearly based on an assessment by the Tribunal Member of the Applicant's credibility. The Tribunal set out its reasons why it rejected the Applicant as a credible witness and this was clearly a matter for the Tribunal to assess and does not give rise to any jurisdictional error. (See Minister for Immigration & Ethnic Affairs v Wu Shan Liang[2]; also Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham[3]).
[2] 185 CLR 259 at 291 and 292
[3] 168 ALR 407 at [67]
Conclusions
The Applicant told the Court that he accepted that he had been lying up to now and he decided to tell the truth. His reasons for wishing to stay in Australia are because he likes staying in Australia. He likes Australia, he is happy in this country. He said that he is not gay, that this was a story that was just made up. He said that he had never lied before. He liked the Australian culture and he does not believe that he will be happy in Pakistan. This is now his fourth year in Australia and he has a good lifestyle in this country but would not have a good lifestyle in Pakistan.
I am prepared to accept all of those claims by the Applicant as to why he wishes to stay in Australia. None of them, however, indicate that he is a refugee and none of them indicate any ground relating to any jurisdictional error by the Tribunal. The Applicant as a result of this falsehood seems to have done pretty well in remaining in this country having been here since 2004. However, the application will be dismissed with costs.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V. Lee
Date: 4 October 2007
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