SZGOS v Minister for Immigration - [2007] FMCA 1860

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGOS v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 1860

MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error.

Migration Act 1958 (Cth), s.474

NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10

Applicant:

SZGOS

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG 3612 of 2006

Judgment of:

Emmett FM

Hearing date:

30 October 2007

Date of last submission:

30 October 2007

Delivered at:

Sydney

Delivered on:

9 November 2007

REPRESENTATION

Applicant appearing on his own behalf

Counsel for the Respondent:

Ms R. Francois

Solicitors for the Respondent:

Ms M. Mafessanti, Clayton Utz

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3612 of 2006

SZGOS

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The Applicant claims to be entitled to a protection visa on the basis that he has a well-founded fear of persecution from authorities in Pakistan by reason of his membership with the Pakistan Peoples Party (“the PPP”). The Applicant claimed to be a political activist and therefore relies on the Convention ground of political opinion or imputed political opinion.
The Applicant arrived in Australia on 6 November 2004, and lodged an application for a protection visa on 10 December 2004. On 9 March 2005, a delegate of the First Respondent notified the Applicant that his application for a protection visa had been refused on the basis that he is not a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.
On 24 May 2005, the Applicant lodged an application for review with the Refugee Review Tribunal (“the Tribunal”) of the delegate’s decision. On 15 May 2006, the matter was remitted to the Tribunal for determination according to law.
On 26 October 2006, the Tribunal affirmed the decision of the delegate.
The Tribunal, as reconstituted, found that the Applicant had “greatly exaggerated his level of involvement with the Pakistan Peoples Party”. The Tribunal was not satisfied that the Applicant feared any harm because of any political opinion imputed to him.
The Tribunal noted that the Applicant produced no documentary evidence of his membership of the PPP despite having given him a further month after the conclusion of the hearing. The Tribunal noted that there was no further documentary evidence submitted by the Applicant, nor did the Applicant contact the Tribunal to explain why he had not sent any further documents. In those circumstances, the Tribunal found that it was not satisfied any documentary evidence existed in support of the Applicant’s claim to be a member of the PPP.
The Tribunal also noted that the Applicant visited India in 2004 at a time during which he considered himself to be at risk of harm in Pakistan and then returned to Pakistan early from that trip because some Rotary colleagues wanted him to do so. He gave oral evidence to the Tribunal initially that he was happy to re-enter Pakistan at that time although later claimed to be hiding in Pakistan. The Tribunal found those two claims to be “highly inconsistent”.
The Tribunal found the Applicant’s claims to have been in hiding from 1999 to 2004 as “highly unconvincing”.
The Tribunal found that the Applicant was unable to explain why he in particular was targeted for harm because of his own political opinions.
The Tribunal found that the Applicant was not a “truthful” witness and was not satisfied that the Applicant had been the target of any past harm or threats of harm because of any political opinion imputed to him.
In any event, based on independent country information, the Tribunal was not satisfied that a “mere supporter of the PPP” could generally be said to have a well-founded fear of persecution.
Accordingly the Tribunal affirmed the delegate’s decision to refuse the Applicant a protection visa.
On 5 December 2006, the Applicant filed an application in this Court seeking a judicial review of the Tribunal’s decision.
The Applicant appeared at the hearing unrepresented however had the assistance of an interpreter. The Applicant confirmed that he relied upon an amended application filed on 13 March 2007.
The Court invited the Applicant to make whatever submissions he wished in support of his application. The Applicant made no meaningful submission, however, stated that he had only been given a month to provide written documentation to the Tribunal and that he was unable to obtain the documents because the police were not prepared to release the documents.
However, as referred to above in these Reasons, the Tribunal, noted that the Applicant had produced no documentary evidence despite 18 months having elapsed since his initial application. The Tribunal noted the Applicant’s explanation that he had mislaid documentary evidence. The Applicant also told the Tribunal that the documents had been posted from Pakistan and he would forward them to the Tribunal. In the Claims and Evidence section of its decision, the Tribunal noted that the Applicant had expected the documents within 3 or 4 days of the close of the hearing before the Tribunal. The Tribunal noted in its decision: “Despite that undertaking having been made well over a month ago no documentary evidence from Pakistan is been submitted (and the Applicant has not contacted the Tribunal to explain the delay).”
The Tribunal was not satisfied that documentary evidence in support of the Applicant’s claim of membership of the PPP existed. That was a finding open to the Tribunal on the evidence and material before it and for which it provided reasons.
The terms of the amended application are largely a restatement of the Applicant’s factual claims. The document is rambling and does not disclose with any clarity an error capable of review by this Court going to the jurisdiction of the Tribunal.
However, giving the Applicant the benefit of the doubt, the amended application appears to assert that the Tribunal ignored the Applicant’s claims. Such an assertion is not borne out on the face of the decision. It is clear that the Tribunal understood the Applicant’s claims, explored them in detail with the Applicant; identified concerns with the Applicant during those exchanges that it had about the Applicant’s evidence; and noted the Applicant’s responses. The Applicant did not provide any evidence in support of his allegations and was unable to identify any particular claim that he asserted the Tribunal did not consider.
The amended application also appears to assert that the Tribunal relied on independent country information with which the Applicant did not agree. However, it is a matter for the Tribunal the independent country information to which it has regard and the weight it places upon it (NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11]). The Applicant did not suggest that there was any information provided to the Tribunal that the Tribunal failed to consider.
Otherwise the amended application is no more than a disagreement with the findings and conclusions made by the Tribunal.
A fair reading of the Tribunal’s decision makes it clear that the Tribunal complied with its statutory obligation in the making of its decision including the conduct of its review. The findings and conclusions made by the Tribunal were open to it on the evidence and material before it and for which it provided reasons.
The decision of the Tribunal is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Migration Act 1958 (Cth), this Court has no jurisdiction to interfere.
The proceeding before this Court commenced by way of application filed on 5 December 2006 is dismissed.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Emmett FM

Associate: S. Kwong

Date: 31 October 2007