SZGBA v Minister for Immigration & Anor

Case •

[2006] FMCA 1543

•

13 October 2006

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGBA v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 1543
MIGRATION – Visa – protection (class XA) visa – Refugee Review Tribunal – application for review of a decision of the RRT affirming a decision of a delegate of the Minister not to grant a protection visa – applicant a citizen of Pakistan claiming fear of persecution because of his activities in a group opposed to drug trafficking – whether Tribunal breached Migration Act 1958 (Cth) s.424A – no reviewable error.
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.424A, 474
ReMinister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] 168 ALR 407 referred to.
Minister for Immigration & Multicultural & Indigenous Affairs v NAMW [2004] FCAFC 264 followed.
VHAP of 2002vMinister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 82 followed.
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 24 referred to.
Applicant: SZGBA
First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
Second Respondent: REFUGEE REVIEW TRIBUNAL
File number: SYG 886 of 2005
Judgment of: Scarlett FM
Hearing date: 13 October 2006
Date of last submission: 13 October 2006
Delivered at: Sydney
Delivered on: 13 October 2006

REPRESENTATION

Applicant: In Person
Solicitor for the Respondent: Ms Hooper
Solicitors for the Respondent: Phillips Fox

ORDERS

  1. The Refugee Review Tribunal is joined as a Respondent to the application.

  2. The title of the First Respondent is changed to Minister for Immigration & Multicultural Affairs. 

  3. The Application is dismissed.

  4. 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

SYG 886 of 2005

SZGBA

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Application

  1. This is an application for review of a decision of the Refugee Review Tribunal. The decision was signed on 23rd February and handed down on 15th March 2005. The Tribunal affirmed the decision of the delegate of the Minister not to grant a protection visa to the Applicant.

Background

  1. The Applicant is a citizen of Pakistan who arrived in Australia on
    1st July 2004.  He applied for a Protection (Class XA) visa on
    21st September 2004 but that was refused on 9th November.
    On 18th November the Applicant applied for a review of that decision. The Tribunal wrote to the Applicant under the provisions of s.425 of the Migration Act and invited him to attend the hearing. The Applicant attended a hearing and gave oral evidence to the Tribunal on Tuesday 15th February 2005.

  2. The Tribunal noted the Applicant's oral evidence and also his application for a visa and the statement by his adviser which was attached. 

  3. Basically the Applicant claims that he has a fear of persecution if he were to return to Pakistan because of a group he had joined in March 2000 which was an anti-drug group and was against the selling of drugs. The Applicant said that the group would obtain information about drug dealers and they would pass this on to their superior in the group who would pass this information to the police. The Applicant stated he had spent time at the weekends and after work and during his holidays carrying out investigations and had been involved in this work for three years from 2000 to 2003.

  4. Because of the Applicant's involvement in locating drug dealers he had received threats and in fact was bashed in 2002. As a result, the Applicant said that he required treatment in hospital. The Applicant said that if he were to return to Pakistan he felt that he might be harmed. He told of having written a booklet naming persons involved in drugs. As a result he was in fear of his life and he had been threatened.

  5. The Applicant told the Tribunal of people whose names he had revealed to the police. One of them was a person called Asslam Afridi.  The Tribunal raised country information with the Applicant which indicated that a person by the name of Afridi was a renowned drug dealer in a north-western frontier province and had been detained in the 1908s and 1990s. The Tribunal expressed scepticism about the Applicant's account but the Applicant said the person referred to in the country information was not the same person that he was referring to.  The person referred to in the country information was Haji Ayub Afridi and the Applicant said that he was referring to one Asslam Afridi.

  6. The Tribunal referred to country information which is set out on pages 68 and 69 of the Court Book. That country information referred to the anti-drug organisation to which the Applicant claimed to belong and a further report referred to members of the Afridi clan who are an ethnic Pashtun clan with a history of trafficking drugs from Afghanistan through Pakistan's North-West Frontier Province and on to markets of the west. That report referred specifically to the activities of Haji Ayub Afridi and his smuggling network and described the group generally as “the Afridis”.

The Tribunal’s Findings and Reasons

  1. The Tribunal's findings and reasons are set out on pages 70 and 71 of the Court Book. The Tribunal noted the Applicant's claims but did not accept that the Applicant was involved in exposing drug dealers in the manner that he claimed and that as a result his life had been threatened.  The Tribunal considered the key aspects of the Applicant's claim were implausible, particularly in light of the country information and found the Applicant's oral evidence to be unconvincing, weak and highly general.

  2. The Tribunal did accept that the Applicant may have been a member of an anti-drug organisation but did not accept that the Applicant in his spare time carried out the investigations into drug syndicates he claimed or had published a booklet. The Tribunal considered those claims to be implausible and set out reasons why and specifically referred to the country information to which I have previously referred.

  3. The Tribunal described the Applicant's evidence in certain circumstances, being asked to elaborate on parts of his claims, as being vague and imprecise.  The Tribunal had raised with the Applicant the Tribunal's concern about the credibility of the Applicant's claims but the Tribunal described the Applicant as being unresponsive and provided no clarification.

  4. The Tribunal therefore did not accept that the Applicant was subject to threats because of his claimed anti-drug activities prior to his departure from Pakistan.

  5. The Tribunal rejected the Applicant's claim that he was involved in exposing drug syndicates in the North-West Frontier Province and that he faced harm from drug barons or persons in authority on his return to Pakistan.

  6. The Tribunal was not satisfied the Applicant has a well founded fear of persecution or faces a real chance of persecution within the meaning of the Convention if he were to return to Pakistan.

  7. As a result, the Tribunal was not satisfied that the Applicant satisfies the criterion set out in s.36(2) of the Act for a protection visa and affirmed the decision of the delegate.

The Application for Judicial Review

  1. The Applicant has commenced proceedings for judicial review in this Court and by means of an amended application filed on 14th July 2005 seeks declarations that the decision of the Refugee Review Tribunal is not a privative clause and that the Tribunal's decision is void and of no effect. He seeks an order in the nature of certiorari quashing the Tribunal's decision and a writ of prohibition directed to the First Respondent Minister preventing the Minister from acting upon giving effect to the Tribunal's decision.

  2. The ground of the application is that the Tribunal fell into jurisdictional error by failing to comply with the requirements of s.424A of the Migration Act.

  3. The particulars of that claim are that the Tribunal had information which it considered would be the reason or part of the reason for its decision which was information about a particular person, Haji Ayub Afridi, which was not given to the Tribunal by the Applicant in connection with the application and was not non-disclosable information.

  4. The Applicant claims that the Tribunal was required by s.424A of the Migration Act to give the Applicant particulars of this information in writing, point out to him why it was considered to be relevant and ask him to comment. The Tribunal did not do this and it is submitted therefore that the Tribunal fell into jurisdictional error.

  5. Against this, the solicitor for the First Respondent Minister,
    Ms Hooper, submitted that the primary reason for the Tribunal's affirmation of the delegate's decision was the question of credibility that the Tribunal was not satisfied as to the credibility of the Applicant's claims and refers to the decision in ReMinister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] 168 ALR 407 in the judgment of McHugh J at [67].

  6. The country information about which the Applicant complains is, she submits, not information that is caught by s.424A. It is not caught, she submits, in that it comes within the exception set out in s.424A(3)(a). Whilst there is a reference to the name Haji Ayub Afridi, the submission is that this information is not meant to describe the particular person but it is information merely about a class of persons referred to as the Afridi clan of which Mr Haji Ayub Afridi is a member. The use of that person as an example does not change the character of the information.

  7. In any event it is submitted that the person used for illustrative purposes was not the person that the Applicant stated to be relevant to his claim, one Asslam Afridi. The information that was part of the reason of the Tribunal's decision was that the name Afridi is renowned for its association with drug trade over the past 20 years and the reference is to a clan or a group and not to any specific individual. 
    The court was referred to Minister for Immigration & Multicultural & Indigenous Affairs v NAMW [2004] 140 FCR 572 at [66] to [74] and [125] to [138].

  8. In oral submissions the Applicant sought merely to challenge the factual findings of the Tribunal.  A challenge to the factual findings of the Tribunal is in fact what is known as merits review and is not available on judicial review. For the First Respondent, Ms Hooper, referred the Court to the decision of the Full Court of the Federal Court in VHAP of 2002vMinister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 82.

  9. The Full Court at [13] rejected the argument that s.424A(3)(a) prescribes two criteria that must be met, namely that the information (1) is not specifically about the Applicant, and (2) is just about a class of persons. The Full Court rejected the submission that the information in question was general in nature covering more than one class of person and so did not satisfy the second criterion. Their Honours said, at [14]:

    In our opinion that argument must be rejected. The reference to the class of persons in sub-section 424A(3)(a) is not another criterion to be met. It is designed to underline the specificity required by precluding any argument that reference to a class would be taken as a reference to all individuals falling within it.

  10. For the Respondent Minister Ms Hooper also referred the Court to the decision of Beaumont J in Minister for Immigration & Multicultural & Indigenous Affairs v NAMW & Ors [2004] FCAFC 264 at [64] and [66]. At [64] his Honour refers to s.424A(3)(a) and followed VHAP by saying that:

    The paragraph imposes one test and does not contain two disjunctive elements.  That is to say, the provision is referring to information that is not specifically about an applicant or another person such as a witness that is by way of contradistinction about a class of persons of which an applicant or the other person is a member.

  11. At [66] his Honour agreed with the reasoning in VHAP and set out the reasons why.

  12. In my view the Tribunal rejected the Applicant's claims on the basis that the Tribunal had formed an unfavourable view of the Applicant's credibility.  There was evidence upon which it was open to the Tribunal to reject the Applicant's evidence on the basis of credibility and as a consequence the Tribunal's finding is not subject to interference by this Court in conducting judicial review. 

  13. Nevertheless, if as the Applicant submits, the Tribunal breached s.424A of the Migration Act, then clearly there is a jurisdictional error which would be sufficient to grant the relief that the Applicant seeks. In doing so the Court must consider the meaning of s.424A(3). It has been described by Gleeson CJ in SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 24 as "inflexible" and with the greatest of respect, I agree.

  14. Sub-section 424A(3) says:

    This section does not apply to information (a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member, or (b) that the applicant gave for the purpose of the application, or (c) that is non‑disclosable information.

  15. In this case it is quite clear that the Applicant did not give the information about Haji Ayub Afridi for the purpose of the application, nor was that information referred to by the Tribunal, non-disclosable information.  The country information that refers to Haji Ayub Afridi as opposed to Asslam Afridi and the Afridi clan is information that the First Respondent submits is not specifically about the Applicant or another person, it is just about a class of persons of which the Applicant or other person is a member.

  16. The High Court in SAAP did not consider specifically the meaning of that particular paragraph although it is quite clear that the section must be read specifically. I was referred by Ms Hooper to the decision of Beaumont J in NAMW.  I note that his Honour's decision was a dissenting decision and the majority decision was given by Merkel and Healy JJ. 

  17. I look to the majority decision where their Honours considered differences of opinion as to the meaning of s.424A(3)(a). Their Honours said at [138]:

    As is demonstrated by the differences of opinion within the Court to which we have referred, s.424A is not incapable of a construction that gives effect to the intention of the legislature.  Accordingly albeit for reasons that differ from those expressed in VHAP and by Beaumont J, we also of the view that the reference in s.424A(3)(a) to the class of persons is not another criterion to be met but, as is the case with s.57(1)(b), is designed to underline the specificity required by precluding any argument that reference to a class could be taken as a reference to all individuals including, for example, an applicant falling within it, see VHAP at 14.  It follows that the Magistrate was in error in failing to find that the relevant country information fell within the exclusion of s.424A(3)(a) and in finding that the RRT failed to comply with s.424A(1).

  18. With their Honours' words in mind, I have, myself, examined the particular item country information which is found on page 69 of the Court Book.  The article relates to what is described as the saga of Haji Ayub Afridi as an illustration of the clan's reach - that is the reach of the Afridi clan - within the world of drug smuggling. There is a specific reference to Haji Ayub Afridi and the balance of the article refers to Haji Ayub Afridi's smuggling network.

  19. I am of a view that the article refers by name to Haji Ayub Afridi. It does so in the context, however, of illustrating information about a class of people known as the Afridi clan. Haji Ayub Afridi was not the subject of the Applicant's case, nor were his specific activities a matter for decision by the Tribunal. The activities of Asslam Afridi were the matters that were specifically raised by the Applicant in connection with his claim. It follows that the information was a reference to the Afridi clan or a group of people and was not intended to refer to the actions of any specific individual. In my view, the information does come within the exclusion in s.424A(3)(a).

  20. I have read the decision myself independently of the Applicant's case, noting that the Applicant is not legally represented. I am unable to discern any other jurisdictional error. 

  21. It follows therefore that as there is no jurisdictional error the decision is a privative clause decision as defined in s.474(2) of the Migration Act. As such, it is not subject to declaration or certiorari or prohibition.
    The application will be dismissed.

  22. There is an application for costs. The Applicant has been unsuccessful in his claim and there is nothing before me which would indicate that I should depart from the usual practice that costs follow the event. The amount of $5,000.00 is sought. I note that this is an application that was commenced prior to 1st December 2005.  In my view the amount is not unreasonable in the circumstances and I propose to make a costs order in that amount.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  V. Lee

Date:  17 October 2006

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