SZFOM v Minister for Immigration & Anor (No.2) - [2006] FMCA 1084

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFOM v MINISTER FOR IMMIGRATION & ANOR (No.2)

[2006] FMCA 1084

MIGRATION – Review of decision of RRT – where Tribunal places little weight on documents – where Tribunal has two independent grounds for decision – where applicant seeks merits review.

Federal Magistrates Court Rules 2001

WAGU v Minister for Immigration [2003] FCA 912

Applicant:

SZFOM

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG200 of 2005

Judgment of:

Raphael FM

Hearing date:

17 July 2006

Date of Last Submission:

17 July 2006

Delivered at:

Sydney

Delivered on:

17 July 2006

REPRESENTATION

For the Applicant:

In Person

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

Application dismissed.
Applicant to pay the first respondent’s costs assessed in the sum of $3,500.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.
Refugee Review Tribunal to be joined as second respondent.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG200 of 2005

SZFOM

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicant is a citizen of Pakistan. He arrived in Australia on 16 November 2003. On 23 December 2003 he lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs. On 20 February 2004 a delegate of the Minister refused to grant a protection visa and on 26 February 2004 the applicant applied for review of that decision. The Tribunal arranged hearings for the purposes of taking evidence from the applicant. These hearings were postponed a number of times but were eventually concluded on 14 October 2004. The applicant then provided certain further information in writing to the Tribunal. The Tribunal determined, on 24 November 2004, to affirm the decision not to grant a protection visa.
The applicant claimed to have a well-founded fear of persecution for the Convention reason of political opinion. He told the Tribunal that he was a person of Kashmiri ethnicity although he had been born in the Punjab province of Pakistan. He stated that he and his family had been affiliated with the Jammu and Kashmir Liberation League (JKLL), a party which has, as its main objective, the obtaining of freedom for Kashmir. The applicant told the Tribunal that the party was opposed to violence. He claimed that he had been the general secretary of a local branch of the JKLL, which had seven members.
The applicant claimed that because of his political activity he was detained and mistreated in 1998 and March 2000. In 1998 he was taken away by people who he claims were associated with the ISI and tortured before being released. In March 2000 he was taken away by the security agency for about three to four days. When he was released he was told not to take part in the Kashmiri Independence Movement.
The applicant had received his passport in July 2000 and prior to coming to Australia he had travelled into other countries including Poland in October 2002. He told the Tribunal that if he returned to Pakistan the ISI would seek to detain him because of his links with the JKLL.
During the course of the interview the Tribunal questioned the applicant about his knowledge of the JKLL which he said that he had belonged to since his student days. At [CB 148] the Tribunal says:
“I do not accept that the applicant was ever an office bearer of the JKLL. The applicant had little or no detailed knowledge of the policies, aims, history or organisation of the party. When I questioned him on his role as general secretary of his local branch he told me that there were seven members of the branch; that his job was to organise meetings from time to time and set the agenda but not to call meetings... He could not recall when the founder of the party was killed and did not know the approximate number of members of the whole organisation, nor how the branches operated in relation to the rest of the party. I would have expected that if the applicant had been a member and office bearer since his days at university in the 1960s he would have had a detailed knowledge of all or some of these matters. He only had a very general idea of the aims of the JKLL, that is, that it was a non-violent party which sought an independent secular democracy for Jammu and Kashmir.”
The applicant also produced to the Tribunal in support of his application, certain documents. These are found between [CB 105] and [CB 128]. Some of the documents appear to be written in Urdu with English translations, others are written in English. Two of the documents are said to be letters from the leader of the JKLL, and there is a hospital report from the Roshan Hospital referring to an admission of the applicant on 26 July 1998 and a discharge on 4 August. The applicant maintains that this document corroborated his story that he had been arrested and detained by the ISI at that time and had been tortured.
The Tribunal had put to the applicant that it was aware of a high incidence of document fraud in Pakistan, and that applicants from Pakistan could obtain documents at will to support an application such as this one. The Tribunal concluded that the documents had very little weight when considered in the overall context of the applicant's evidence. In regard to the hospital report, the Tribunal indicated concern with the fact that the report was written in English and gave generalised, lay descriptions of injuries and alleged cause of those injuries.
The Tribunal also used independent country information to come to the conclusion that, given the nature of the JKLL, the applicant was not at risk of harm from the Government authorities of Pakistan stating at [CB 151]:
“I have considered the situation if the applicant returns to Pakistan now or in the foreseeable future on the basis that he may have been a supporter of the JKLL or may have been a member at some time. I prefer the country information set out above, which indicates that members of the JKLL are at no risk of harm from government authorities of Pakistan to the evidence of the applicant that the government is opposed to the activities of the party. I consider that the independent information is an objective appraisal of the situation whereas the applicant is seeking to support his claims for refugee status with his own assertions as to the government's attitude to JKLL.”
The Tribunal concluded that the applicant was not a person to whom Australia owed protection obligations as he did not satisfy the Tribunal that he held a well-founded fear of persecution for a Convention reason.
The applicant, in his amended application, makes a number of complaints about the Tribunal's decision. Unfortunately these complaints are not particularised so it is difficult to understand where many of them come from so far as the decision itself is concerned. In fact, one must have a strong suspicion that these were copied from another person's application.
The amended application filed by the applicant on 29 July 2005 makes claims which are, in essence, that the Tribunal made its decision on what the applicant considered to be irrelevant and incorrect independent country information. The applicant also sought to challenge the findings of the Tribunal and to provide certain further allegations. What he was effectively attempting to do, as he was attempting to do at the hearing today, was to obtain an impermissible merits review of the Tribunal's decision.
The applicant did complain about the Tribunal's attitude towards his written information. It is to be remembered that the Tribunal did not make a finding that this information was a forgery but concluded only that it was information that would bear very little weight, due principally to the fact that the Tribunal had already come to the conclusion from the responses given by the applicant to its questioning, that it was unlikely that he was ever a member of the JKLL. In WAGU v Minister for Immigration [2003] FCA 912 French J said at [34]:
“It may well be the case that where a Tribunal has made findings adverse to the credibility of an applicant before it, those findings may form a basis for rejecting the authenticity of documentary evidence tendered to the Tribunal by the applicant.”
He continued at [36]:
“Corroborative evidence may be rejected as of no weight because it is dependent upon and can be shown to be undermined by findings as to the tendering party's credibility. In such a case a failure to put to the tendering party that the evidence may be so regarded, cannot constitute a breach of procedural fairness. This is just a special case of the general proposition that procedural fairness does not require the decision maker - in this case, the Tribunal - to invite comment upon its thought processes on its way to the decision..”
This is exactly what happened in this case. Whilst another Tribunal or another court may not necessarily agree with the views expressed by the Tribunal as to the veracity of documents or the weight to be given to them, such disagreements do not substantiate a claim of jurisdictional error.
In this case the Tribunal made a decision on two independent bases. The second basis was that the independent country information indicated that membership of the JKLL was not something that would be expected to lead to the type of persecution alleged by the applicant. This decision of the Tribunal was based upon evidence before it and upon that evidence the Tribunal's conclusions were open to it. Whatever criticism the applicant may have of the Tribunal's views concerning his credibility, this independent ground for declining the requested visa is not capable of being impugned.
I am satisfied that the Tribunal did not fall into jurisdictional error in the manner in which it came to its decision in this case. I dismiss the application. I order that the applicant pay the respondent's costs which I assess in the sum of $3,500.00. I join the Refugee Review Tribunal as second respondent.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: