SZFVE v Minister for Immigration
[2006] FMCA 524
•5 April 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZFVE v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 524 |
| 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 claiming fear of persecution for political opinion – no reviewable error. |
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.430, 474, 475A
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24
VQAB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 104
| Applicant: | SZFVE |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File No: | SYG 556 of 2005 |
| Delivered on: | 5 April 2006 |
| Delivered at: | Sydney |
| Hearing date: | 5 April 2006 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| The Applicant: | In Person |
| Solicitor for the Respondent: | Ms Quinn |
| Solicitors for the Respondent: | Phillips Fox |
ORDERS
Leave to join Refugee Review Tribunal as a Respondent.
The title of the First Respondent is changed to Minister for Immigration and Multicultural Affairs.
The Application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $3,500.00.
I allow twelve (12) months to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 556 of 2005
| SZFVE |
Applicant
And
| MINISTER FOR IMMIGRATION & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an application for review of a decision of the Refugee Review Tribunal. The decision was signed on the 31st January 2005 after a hearing that took place on the 25th January 2005. The Refugee Review Tribunal handed down its decision on the 18th February 2005.
The decision of the Tribunal was to affirm the decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs made on 11th November 2004 not to grant a Protection Visa to the Applicant.
Background
The Applicant is a citizen of Pakistan who gave oral evidence before the Tribunal on 25th January 2005. He claims a well-founded fear of persecution for reason of political opinion.
The Applicant had claimed that he was a member of a party in Pakistan called the MQM Party and he had been attacked and kidnapped by members of another political party. He claimed that he could not obtain protection from the authorities in Pakistan and that he left Pakistan as a result. He fears to return to Pakistan because he believes he would be killed by members of this other party.
The Tribunal accepted the Applicant's evidence that he was a member of a branch of the MQM Party in Pakistan and that he had worked for the party as he claimed. The Tribunal accepted that he had been attacked on two occasions and had even been kidnapped and detained for a day in March 2000 by his political opponents.
Nevertheless, the Tribunal did not accept that the Applicant had left Pakistan because of his fears of harm and did not accept that he had a fear of returning to Pakistan for that reason. The reasons for the Tribunal making that finding arose from the Applicant's own evidence that he had lived in Karachi for over four years before he travelled to Australia and had worked in a clothing business for a number of months without any serious incident occurring.
The Tribunal did not accept that the Applicant had been in hiding when he lived in Karachi and found that the Applicant had lived safely there and that there was no plausible evidence that he would not continue to live safely in Karachi were he to return.
The Tribunal found that there was no persuasive evidence to conclude that there was a real chance that the Applicant would face serious harm because of his political opinion or any other Convention reason if he were to return to Pakistan. The Tribunal found that the Applicant did not satisfy the criterion set out in sub-section 36(2) of the Migration Act for a Protection Visa. The Tribunal affirmed the decision of the delegate not to grant the applicant a Protection Visa.
Application for judicial review
The Applicant has sought a review of that decision from this Court. He provides two grounds for review. First, he claimed that the Tribunal fell into jurisdictional error in addressing a wrong issue or applying the wrong test and overlooked relevant material in determining whether he had a well-founded fear of persecution. The particulars of that ground were that on the basis that the Tribunal accepted that the Applicant had been attacked in 1998 and kidnapped and detained in 2000 for political reasons and having rejected that the Applicant had lived in hiding in Karachi between 1999 and 2000, it was not open to the Tribunal to conclude that the Applicant had lived in safety in Karachi without any evidence to support that inference.
The Applicant also claimed that reliance upon the inference that the Applicant had lived in safety between 1999 and 2004 caused the Tribunal to address a wrong issue or overlook relevant material.
The second ground given by the Applicant was that the process of accepting the attack upon the Applicant in 1999 and his kidnapping and detention in 2000 but still finding that the Applicant had lived safely in Pakistan without a full explanation under s.430 of the Migration Act resulted in a decision that was illogical, irrational and not based on findings or inferences of facts supported by logical grounds.
Against this the respondent relies on the decision of the Full Court of the Federal Court in VQAB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 104 and submitted first of all that the entire basis for the Tribunal's decision was its finding that the Applicant had lived safely in Karachi for four years before leaving for Australia. The Respondent submits that the Tribunal had accepted the incidents up to March 2000 but did not accept that the Applicant was in hiding whilst in Karachi and that was a finding of fact by the Tribunal not susceptible to judicial review. This finding was open to the Tribunal on the evidence, namely the Applicant's own evidence at that time.
The Respondent submits there was nothing to suggest that the Tribunal had addressed the wrong issue or had not overlooked the Applicant's past history of harm or that the Applicant's claim that the Tribunal did not consider the effect that the past treatment of him would have had on him whilst in Pakistan.
With respect to ground two; the Respondent submits that the Tribunal's decision was not illogical or irrational and that the finding that the Applicant had not been in hiding in Karachi logically led to the finding that the Applicant was no longer at risk of persecution. This finding came from the Applicant's own evidence and the Respondent submits that the evidence is capable of supporting that finding.
The Applicant at the hearing tendered a copy of the Tribunal transcript of the hearing and a copy of the death certificate of his late father. The Applicant submitted that his father's death at the relatively young age of 64 had at least partly been caused by his fears for the Applicant's safety in Pakistan as a result of the activities of the Applicant's political opponents. The Applicant was aggrieved that the Tribunal did not see fit to make reference to the death of his father or put the weight on that fact that the Applicant considers to be appropriate. It was clear that the Applicant was very close to his late father and that the father's death in April 2002 had had a considerable effect upon the applicant.
In respect of that point; I note that the Applicant did give evidence to the Tribunal about that very issue. The fact that the Tribunal did not make any particular reference to the fact did not mean that the Tribunal disregarded the Applicant's evidence. It is clear that the Tribunal did not take issue with the Applicant's evidence about the death of his father and was prepared to accept that his father had died at that time but did not put any weight on the father's death as leading to the conclusion that the Applicant had a well-founded fear of persecution for reason of political opinion. In my view it was open for the Tribunal to deal with the issue in that way.
It is well established that a Tribunal is not obliged to refer to every piece of evidence, especially if that evidence is uncontroversial. The Tribunal, being the administrative decision maker in these proceedings, has the responsibility for making factual findings. Where there is a ground for making a factual finding and by that ground I mean an evidentiary ground, the Tribunal's finding is not subject to judicial review. It is the Tribunal that is the arbiter of the facts. The Court does not reconsider the facts and substitute its own opinion on the weight to be given to those facts for that of the Tribunal.
In this case the Tribunal was not satisfied that the Applicant had been in hiding in Karachi for the four years prior to his departure for Australia and this was based on the Applicant's own evidence. Whilst the Tribunal accepted that there had been certain incidents of violence perpetrated upon the Applicant by his political opponents up to March 2000, the Tribunal was not satisfied that the evidence led to the finding, either that the Applicant had been hiding from his enemies for four years after that time or had a well-founded fear of persecution in the reasonably foreseeable future. The fact that incidents had occurred up to 2000 did not of itself go to show that the Applicant had a well-grounded fear of persecution in January 2005 if he were to return to Pakistan. As there is evidence for the Tribunal's conclusion to that effect, in my view the first ground of review must fail.
The second ground which alleges that the Tribunal's decision was illogical, irrational and not based on findings or inferences of fact is to my mind a ground that must also fail. A reading of the Tribunal decision shows that the Tribunal's finding was based upon evidence which would allow such conclusion to be reached. The reliance on s.430 of the Migration Act is to my mind misconceived in that sub-section (1) requires the Tribunal to:
a)Set out the decision on the review.
b)Set out the reason for the decision.
c)Set out the findings on any material questions of fact and
d)Refer to the evidence or any other material on which the findings of fact were based.
In preparing its written reasons for decision which appear at pages 73 through to 82 of the Court Book, the Tribunal has complied with the obligations imposed on it by s.430.
Whilst the Applicant believes that the Tribunal's reasons are illogical or irrational or just plain wrong, that does not lead to a finding that the Tribunal did not comply with s.430 of the Migration Act. It clearly did.
It was open, on the evidence, for the Tribunal to be satisfied that the Applicant had suffered incidents of violence between 1998 and 1990, but not to be satisfied on the basis of the Applicant's evidence that there was an ongoing state of affairs in 2005 that led to the Applicant having a well-founded fear of persecution in the foreseeable future. That being the case, jurisdictional error has not been made out.
I have read through the Tribunal decision myself as I am aware of the fact that the Applicant is not legally represented in these proceedings. I am unable to discern any other jurisdictional error not referred to by the Applicant.
As there is no jurisdictional error it follows that the decision is a privative clause decision as defined in s.474 of the Migration Act. Section 474 also provides that if a decision is a privative clause decision it is not susceptible to judicial review and will not lead to the issue of any of the constitutional writs such as certiorari or mandamus. As there is no reviewable error, the application will be dismissed.
There is an application for costs on behalf of the Respondent Minister. A figure of $3,500.00 is mentioned. The Applicant has been unsuccessful in his claim and there is no reason why the usual rule that costs follow the event should be applied. In other words; the successful party is entitled to an order that he or she should be entitled to reimbursement of legal costs on a party and party basis.
The Applicant says he does not have the funds to pay such an amount as he has not been in employment for about seven or eight months. I have no reason to doubt that. The fact that a party does not have the funds is not a reason not to make an order for costs but it is a reason for the Court to consider time to pay. In my view, bearing in mind that the Applicant is not in employment and has not been in employment for seven or eight months; whilst I propose to make an order for costs, I will allow time to pay. The Applicant is to pay the First Respondent's costs fixed in the sum of $3,500.00 but I allow 12 months to pay.
I note that the Minister has changed her title and I will order that the title of the First Respondent is changed to Minister for Immigration and Multicultural Affairs.
I note that the Refugee Review Tribunal has already been joined as a Respondent in compliance with a decision in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 so I make the following orders.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: Virginia Lee
Date: 12 April 2006
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