SZGOU v Minister for Immigration
[2006] FMCA 1033
•21 July 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGOU v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1033 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution in Pakistan at the hands of drug lords – applicant declining hearing invitation and RRT proceeding in his absence – insufficient material before the RRT to support a favourable decision – no reviewable error found – application dismissed. |
| Migration Act 1958 (Cth), ss.36, 65, 424A |
| SZCIA v Minister for Immigration [2006] FCA 238 |
| Applicant: | SZGOU |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG1638 of 2005 |
| Judgment of: | Driver FM |
| Hearing date: | 21 July 2006 |
| Delivered at: | Sydney |
| Delivered on: | 21 July 2006 |
REPRESENTATION
The Applicant appeared in person
| Counsel for the Respondents: | Ms S Kaur-Bains |
| Solicitors for the Respondents: | Blake Dawson Waldron |
ORDERS
The Refugee Review Tribunal be joined as the second respondent to the application.
The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1638 of 2005
| SZGOU |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Refugee Review Tribunal (“the RRT”). The decision was handed down on 2 June 2005. The RRT affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant is from Pakistan and had made claims of persecution as a result of his social work activities which had attracted the ire of drug dealers in Pakistan. The background to the applicant's protection visa claims and the RRTs decision on them are adequately set out in the Minister's written submissions filed on 14 July 2006. I adopt as background for the purposes of this judgment paragraphs 2 to 8 of those written submissions:
The applicant is a citizen of Pakistan, who arrived in Australia on 18 October 2004. On 29 November 2004, the applicant lodged an application for a protection (Class XA) visa. On 1 March 2005, a delegate refused to grant a protection visa.
On 23 March 2005, the applicant applied for review of that decision to the RRT.
RRT’s decision
The RRT’s decision recorded the applicant’s claims as follows. The applicant claimed that he feared persecution in Pakistan because he was against Pakistani drug lords. The applicant claimed that he was a prominent social worker in Pakistan. He formed a social organisation in Rawalpindi, the aim of which was to oppose drug dealers in that city. The applicant said that he and many of the other members of the organisation were subjected to harassment and torture by drug dealers. Other members of the organisation were forced to go into hiding or leave Pakistan. The applicant stated that he and his associates opened branches of their organisation all over Pakistan. The applicant travelled throughout Pakistan, recruiting people to join his organisation. He also used to request other organisations to help him. The applicant used to deliver literature against drug use. The applicant said at first he was warned by drug dealers to stop his activities. He did not take any notice of the warning. He reported the matter to the police, who did not take any action. The applicant received further threats but, again, no action was taken by the police. The applicant stated he had no other option, but to leave Pakistan, which he did on 17 March 2003. The applicant went to the UAE on that date to protect himself against the drug dealers and drug lords. The applicant returned to Pakistan on 9 December 2003 and recommenced his welfare work. This time, the applicant’s life was threatened and he was kidnapped on 16 December 2003. The applicant was physically assaulted and told that he would be stoned to death if he started his activities again. The applicant reported this to the police, but the police refused to register the complaint, as nobody would give evidence against drug dealers. The applicant recommenced his activities. The drug dealers and drug lords found out about this and persecuted him again. The applicant returned to the UAE on 13 January 2004 and remained there for 8 or 9 months. The drug lords chased him to the UAE. The applicant obtained an Australian visa while he was there and returned to Pakistan on 30 September 2004. Because the applicant was being chased by drug lords in the UAE, he went into hiding until he came to Australia on 18 October 2004.
The claim set out in the RRT’s decision accurately reflects the claims made by the applicant in his statutory declaration in support of his protection visa application: (see court book, pages 25, 67).
By letter dated 19 April 2005, the RRT wrote to the applicant stating that it had considered the material before it in relation to the applicant’s claims, but it was unable to make a decision in the applicant’s favour on the information alone. The RRT invited the applicant to come to the hearing to give oral evidence and present arguments in support of his claim: (see court book, pages 56,66).
The applicant responded to the hearing invitation on 10 May 2005, stating that he did not want to come to a hearing: (see court book, pages 58,66).
The RRT proceeded in the applicant’s absence and found that without further information from the applicant, it could not be satisfied that the applicant had a well-founded fear of persecution for a convention reason arising from his claims: (see court book, pages: 69, 2nd paragraph).
These proceedings began with a judicial review application filed on 23 June 2005. The applicant relies upon an amended application filed on 3 November 2005. The grounds in the application are summarised in paragraph 1 of the Minister's written submissions, which I also adopt for the purposes of this judgment:
In the amended application, the applicant claims:
a)That the RRT did not appreciate the evidence and the claim of the applicant to the effect that the applicant fears persecution in Pakistan because the applicant was against the drug lords in Pakistan. Ground 1 then sets out facts upon which the applicant says that he feared persecution (Ground 1);
b)That the RRT did not deal with the applicant’s case in accordance with the law. The applicant then sets out further facts to support his claim of persecution (Ground 2);
c)That the RRT did not place any importance on the claim or evidence of the applicant and the RRT did not make findings in relation to the applicant’s claim, specifically whether the events might occur again and whether the applicant had a well-founded fear of persecution on that basis (Ground 3).
The Minister relies upon the written submissions dealing with the grounds advanced in the application. In addition, those written submissions deal with the issue of possible breach of s.424A of the Migration Act 1958 (Cth) (“the Migration Act”), which was not raised specifically in the amended application.
The applicant was unable in his oral submissions to expand upon the grounds in his application. He was concerned at the disadvantage he faces as a self-represented litigant but that is a disadvantage which he shares with many thousands of other litigants in courts all over Australia. I note that the applicant has had the benefit of advice under the Minister's Panel Advice Scheme. I agree with and adopt, for the purposes of this judgment, paragraphs 9 through to 17 of the Minister's written submissions:
Ground 1
The RRT clearly considered the claims made by the applicant as set out in his statutory declaration and found that it was not satisfied from that information that the applicant had a well-founded fear of persecution for Convention reasons. That finding was open to the RRT to make.
The applicant, by raising factual matters in Ground 1, is seeking to re‑agitate the facts of the matter, which is not permitted.
No jurisdictional error is disclosed by this ground.
Ground 2
The RRT’s decision clearly shows that the applicant’s case was dealt with in accordance with the law. Again, the applicant raises factual matters which are not relevant to whether the RRT committed jurisdictional error.
No jurisdictional error is disclosed by this ground.
Ground 3
Pursuant to s.65 and s.36 (2) of the Migration Act, the RRT was required to consider whether it was satisfied that Australia has protection obligations under the Refugees’ Convention as amended by the Refugee Protocol. The RRT discharged this duty by finding that it could not be satisfied that the applicant had a well-founded fear of persecution for a Convention reason arising from the applicant’s claims.
No jurisdictional error is disclosed by this ground.
Matters not raised by the applicant
The first respondent has considered whether there has been a failure to comply with s.424A(1) of the Migration Act. The issue arises whether the reference to the applicant’s statutory declaration which was not provided by the applicant for the purposes of the application for review to the RRT, could be said to fall within the operation of s.424A(1) of the Act.
In the first respondent's submission, the proper construction of the RRT’s reasons is that it was simply not satisfied of the relevant matters, and, thus for the reasons set out by Justice Allsop in SZCIA v. Minister for Immigration [2006] FCA 238 at paragraphs 11 and 12, there was no failure to comply with s.424A of the Migration Act.
It is, in my view, clear that the decision of the RRT is free from any jurisdictional error. It is, therefore, a privative clause decision and the application must be dismissed. I so order.
The application having been dismissed, costs should follow the event. The Minister seeks an order for costs fixed in the sum of $4,500. That is a reasonable assessment of party and party costs in this matter. The applicant did not wish to be heard on costs. I will order that the applicant pay the first respondent's costs and disbursements of and incidental to the application, which I fix in the sum of $4,500.
I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 25 July 2006
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