SZGZM v Minister for Immigration
[2007] FMCA 192
•1 March 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGZM v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 192 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision. Status – refugee status – refusal. Visa – protection visa. |
| Migration Act 1958, ss.91X, 424A |
| Re Ruddock; Ex parte Applicant S154/2002 (2003) 201 ALR 437 Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12 Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 |
| Applicant: | SZGZM |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3456 of 2006 |
| Judgment of: | Cameron FM |
| Hearing date: | 19 February 2007 |
| Date of Last Submission: | 19 February 2007 |
| Delivered at: | Sydney |
| Delivered on: | 1 March 2007 |
REPRESENTATION
| The Applicant appeared in person. |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3456 of 2006
| SZGZM |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By application dated 22 November 2006, the applicant seeks review of the decision of the Refugee Review Tribunal (“Tribunal”) dated
18 October 2006 which affirmed an earlier decision of the delegate of the Minister for Immigration and Multicultural Affairs (“Minister”) dated 9 March 2005 refusing the applicant’s application for a protection visa. On 30 March 2006 this Court ordered, by consent, that a writ of certiorari be issued quashing an earlier decision on the applicant’s protection visa application made by a differently constituted Tribunal and dated 29 June 2005.
Section 91X Migration Act 1958 (Cth) (“Act”) provides that the Court must not publish the applicant’s name.
Background facts
The applicant is a Pakistani citizen. The Tribunal described the applicant as follows:
The Applicant is aged in his mid-thirties. In his original application he said that he had been born in Sialkot in the province of Punjab but that he had finished his education in Karachi, completing a two year bachelor degree through a college under the auspices of the University of Karachi in 1992. He said that he had been employed as a clerk in Dubai from 1997 to 1999 and that he had had his own screen-printing and embossing business in the town of Sialkot from 2000 until 2004. (Court Book “CB” page 121).
The applicant claims to have been persecuted and to fear future persecution in Pakistan because of his political beliefs.
The facts advanced by the applicant in support of his claim for a protection visa were not consistent in all respects. They are set out on pages 4 - 12 of the Tribunal’s decision (CB 121 – 129). In general terms, they are:
a)the applicant had his own successful printing business in Sialkot. He went to Bahrain in June 2004 with the intention of getting some sort of work there but was unsuccessful. He returned to Sialkot after one month;
b)the applicant has been a member of the Pakistan Muslim League (Nawaz) (“PML(N)”) since 2001 and deputy president of the Dalowali (Dhallewali) branch of this party in the Sialkot district. He has a copy of what he claims is a membership card issued to him in this capacity on 12 October 2003. His duties included introducing new members into the party and promoting unity;
c)after the former Prime Minister, Nawaz Sharif, was ousted in a coup in October 1999, members of the PML(N) were persecuted. The applicant feared for his life in Pakistan because of his affiliation with the PML(N). The applicant has been attacked by police a few times and he feared that he would be “eliminated” by the police or “incarcerated on some concocted charge”;
d)the applicant produced an English translation of a First Information Report (“FIR”) – the initial report of a criminal offence – registered against him by Sialkot police on 12 May 2004. The applicant says that the FIR was issued to prevent him from welcoming Shahbaz Sharif, the brother of the former Prime Minister Nawaz Sharif, at the airport. The applicant produced press clippings which referred to Shahbaz Sharif’s attempt to return to Pakistan on 11 May 2004 when Sharif was not allowed to land in Pakistan and was sent back to Saudi Arabia;
e)in his visa application form, the applicant claimed that he had been arrested on the basis of the FIR, although in his oral evidence given at both the first and second Tribunal hearings, he said that he had managed to avoid being arrested;
f)in the applicant’s evidence given at the first Tribunal, he said that he avoided being arrested because he had been careful of “them” and that he had been mostly in hiding. In his evidence before the second Tribunal, the applicant said that he continued running his printing business in Sialkot until he left Pakistan for Australia;
g)the applicant believed that President Pervez Musharraf had “a battery of secret agents to settle scores with the followers of legitimate political parties”, that the applicant had been “short-listed as a staunch opponent of Musharraf regime and figured on the hit-list of the secret agents of Musharraf” and that he would be eliminated by secret agents were he to return to Pakistan;
h)the applicant produced a letter dated 10 January 2005 purporting to be a letter from the vice-president of the PML(N) in District Sialkot stating that the applicant was a very active worker of the PML(N), that his life was “NOT secure”, that they had advised the applicant to stay abroad and that the case against the applicant was “purely based on political revenge”;
i)the applicant produced another letter dated 10 January 2005 purporting to be from his parents, in the same typeface as the letter described in 5(h) above, containing some of the same phrases such as that his life is “NOT secure” and that the applicant was an active worker of the PML(N);
j)the applicant said at the first Tribunal hearing in June 2005 that he had been having trouble for the previous three or four years but that he had had no difficulty in renewing his passport in May 2003. He said that the vice-president of the PML(N) had helped arrange his visa for travel to Australia;
k)although on one version of events he was in hiding from the authorities, the applicant was able to get a passport issued in his own name. He had also been able to travel between Pakistan and Bahrain and the applicant acknowledged that there was an official stamp from the government of Pakistan on his passport giving him permission to work in Bahrain; and
l)the applicant has been informed by parents and people of the village that police have come to his home looking for him. He also said that he has been harassed by police who asked him not to “take political activities”.
The Tribunal’s decision and reasons
After discussing the claims made by the applicant in the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”). Before the Tribunal made its decision, it wrote to the applicant on 8 September 2006 pursuant to s.424A of the Act inviting the applicant to comment on information which the Tribunal indicated would be the reason, or part of the reason, for deciding that the applicant was not entitled to a protection visa. The applicant was invited to comment on this information by 3 October 2006 but no response was received by the Tribunal.
The Tribunal’s decision was based on the following findings and reasons which are paraphrased in the first respondent’s outline of submissions as follows:
6. The RRT expressed doubts about the truth of the Applicant’s claims and it indicated that it had “good reasons for doubting that the Applicant is telling the truth”. Those reasons were as follows:
(a) the first information report (“FIR”) presented by the Applicant to the RRT, which he claimed was registered against him to prevent him going to welcome Nawaz Sharif’s brother, Shahbaz Sharif, who had been coming back to Pakistan, was dated 12 May 2004, which was inconsistent with the reason for which it was allegedly issued, namely to stop the Applicant from welcoming Nawaz Sharif’s brother who had returned on 11 May 2004;
(b) there was an inconsistency between the Applicant’s protection visa application, in which he stated that he had been arrested, and his evidence given to the RRT, both as originally constituted and as reconstituted on remittal, at which he said that he had not been arrested;
(c) there was also an inconsistency as to whether the Applicant was in hiding. On the one hand he said that he continued working up until his departure and on the other that he was in hiding from May 2004 until his departure;
(d) the Applicant’s return to Pakistan on a passport in his own name cast doubt on his claim that he was wanted and would be “eliminated” if he were to return to Pakistan;
(e) there was an inconsistency between what the Applicant said regarding the PML(N) election, in that the Applicant had said that Khawaja Asif had lost, but in fact he had won and had been elected to the National Assembly;
(f) country information indicated that whilst there had been harassment of PML(N) members in 2002, such harassment had decreased, that the public was free to discuss issues and that the leaders may have problems but activists and party members do not; and
(g) the RRT did not accept that the documents submitted by the Applicant were genuine as the independent country information indicated that document fraud was frequent. The two letters, which purported to be from the vice-president of the PML(N) in District Sialkot and from the Applicant’s parents, were in the same typeface and contained identical phrases, and the RRT had doubts about whether the Applicant was telling the truth.
In essence, the Tribunal found:
… I do not accept that the Applicant was ever a member of the PML(N) nor that he was ever of interest to the authorities in Pakistan. I do not accept that there is a real chance that, if he returns to Pakistan now or in the reasonably foreseeable future, he will be persecuted for reasons of his real or imputed political opinion or for any other Convention reason. (CB 134).
Proceedings in this Court
The grounds of the application were:
a)the Tribunal asked the wrong question when examining the First Information Report by asking the applicant’s opinion of the report and not how it affected the applicant’s fear and risk;
b)the Tribunal did not look at the difference between a First Information Report and criminal charges and seemed to believe they were the one and the same; and
c)the Tribunal did not examine the risk to, nor whether any harm came to, people who met or attempted to meet Shahbaz Sharif on his attempted return to Pakistan on 11 May 2004.
Dealing with each of these grounds in turn:
The Tribunal asked the wrong question when examining the First Information Report by asking the applicant’s opinion of the report and not how it affected the applicant’s fear and risk
The ultimate question to be determined by the Tribunal was whether the applicant was a refugee and satisfied the four-element test required for the grant of a protection visa. It correctly identified those questions and did not commit an error of a jurisdictional nature by asking or not asking any particular questions concerning one aspect of the evidence, namely the FIR and how it might substantiate the claim to a well-founded fear of persecution for a Convention reason.
It was not the Tribunal’s task to draw the applicant out on particular issues. It was for him to put evidence before the Tribunal on which it could, potentially, reach the appropriate degree of satisfaction. As Gummow and Hayne JJ said in Re Ruddock; Ex parte Applicant S154/2002 (2003) 201 ALR 437 at 450 [57], Gleeson CJ agreeing at 438 [1]:
Those proceedings [in the Tribunal] are not adversarial, but inquisitorial; the Tribunal is not in the position of a contradictor of the case being advanced by the applicant. The Tribunal Member conducting the inquiry is not an adversarial cross-examiner, but an inquisitor obliged to be fair. The Tribunal Member has no "client", and has no "case" to put against the applicant … Here … it was for the prosecutrix [i.e. the visa applicant] to advance whatever evidence or argument she wished to advance, and for the Tribunal to decide whether her claim had been made out … (footnotes omitted).
and at 451 [58]:
… The tribunal conducting an inquisitorial hearing is not obliged to prompt and stimulate an elaboration which the applicant chooses not to embark on.
But the FIR would have no relevance, and neither would any questions in relation to what it might prove if genuine, if the FIR was found not to be genuine. The Tribunal considered the question of the FIR’s genuineness. As it said at CB 130 – 131:
First, as noted in the Tribunal’s section 424A letter, both at the hearing before the Tribunal (differently constituted) and at the hearing before me the Applicant said that a First Information Report (FIR) had been registered against him in order to prevent him from going to welcome Nawaz Sharif’s brother, Shahbaz Sharif, who had been coming back to Pakistan. The Applicant said that this was the FIR an English translation of which he had produced to the Department, which purported to have been registered on 12 May 2004. As I put to the Applicant in the course of the hearing before me, and as indicated in the press reports which the Applicant himself produced along with his original application, Shahbaz Sharif attempted to return to Pakistan on 11 May 2004. As I stated, and as the Tribunal repeated in its section 424A letter, it makes no sense, therefore, for the Applicant to claim that an FIR was registered against him on 12 May 2004 to prevent him from welcoming Shahbaz Sharif. As the Tribunal stated, I consider that this information is relevant to the Applicant’s application because it suggests that he has not told the truth about the FIR which he claims was registered against him. As the Tribunal stated, this information is also relevant to the Applicant’s overall credibility.
The FIR’s genuineness was a threshold issue as to whether it could be considered worthwhile evidence going to the question of whether the applicant had a well-founded fear of persecution. The Tribunal found that it was not a genuine document and had evidentiary support for this conclusion. The Tribunal said at CB 133:
Having regard to the problems which I have with the Applicant’s own evidence, the problems with the documents which he produced outlined above and the independent evidence available to me regarding the ease with which fraudulent documentation can be obtained in Pakistan, I do not accept that the documents which the Applicant has produced in purported corroboration of his claims are genuine.
As the FIR had no value in determining whether the applicant had a well-founded fear of persecution, other than to negatively impact on the applicant’s credit, and it was not the role of the Tribunal to follow any particular line of questioning, no jurisdictional error is demonstrated by the Tribunal in asking or not asking any particular questions in respect of it.
The Tribunal did not look at the difference between a First Information Report and criminal charges and seemed to believe that they were the one and the same
The applicant appears to be suggesting that the Tribunal should have made inquiries as to whether the FIR and criminal charges were different. The Tribunal had no such obligation to enquire. This is seen in the reasons for judgment of Gummow and Hayne JJ, Gleeson CJ agreeing, in Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12 at 21 – 22 [42] and [43]:
The second ground of alleged error amounts to a finding by Selway J that the Tribunal was under a duty to inquire as to the effects of PTSD. This is apparent from his Honour's judgment:
"But, having found that the [respondent] was suffering from PTSD there was no evidence before the Tribunal which would have enabled it to assess whether or not any of the evidence the [respondent] gave was reliable. Having (wrongly) diagnosed that the [respondent] was suffering from PTSD it was an error of law for the Tribunal then to proceed to make credibility findings in relation to the [respondent's] evidence without evidence as to what effect the PTSD might have on the [respondent's] capacity to give evidence." (Emphasis added)
This ground of error is misconceived for two reasons. First, there was evidence before the Tribunal to assist it in determining how to deal with the question of unreliability. There was the Turner report and the fact that the respondent did not object to providing evidence either at the hearing or by affidavit following the hearing. Secondly, whilst s 427 of the Act confers power on the Tribunal to obtain a medical report, the Act does not impose any duty or obligation to do so. Rather, s 426 provides that, even if an applicant requests that the Tribunal take oral or written evidence from a witness (such as a medical practitioner or psychiatrist), the Tribunal is not required to obtain such evidence. Thus, the Tribunal is under no duty to inquire. (footnotes omitted)
To the extent that the applicant submits that the Tribunal did not understand the difference between the FIR and criminal charges, a consideration of the Tribunal’s decision demonstrates that this is not correct. The Tribunal’s discussion in its Findings and Reasons in relation to the FIR has already been quoted above. In relation to the claimed charges against him, at CB 128 the Tribunal records part of the contents of its s.424A letter of 8 September 2006 (CB 109 – 111) in the following terms:
The Tribunal noted, secondly, that in the Applicant’s original application (in his typewritten answer to question 42 on Part C of the application form) he had said that he had been arrested in Sialkot on the basis of the charges mentioned in the FIR. The Tribunal noted, however, that both at the hearing before the Tribunal (differently constituted) and at the hearing on 8 September 2006 the applicant had denied that he had ever been arrested in Pakistan.
The typewritten answer to question 42 on Part C of the application form has not been reproduced in the Court Book, however, it is apparent that the Tribunal considered the FIR and the charges to be distinct issues rather than things which were one and the same. As a result, this ground is not made out.
The Tribunal did not examine the risk to, nor whether any harm came to, people who met or attempted to meet Shahbaz Sharif on his attempted return to Pakistan on 11 May 2004
The applicant claims to have been an active member of the PML(N) and this ground should be seen in that context. However, the Tribunal did not accept that the applicant had ever been a member of the PML(N) or that he was ever of interest to the authorities in Pakistan.
The Tribunal considered the political situation in Pakistan by reference to independent country information which, relevantly, it discussed at CB 132 – 133 in the following terms:
As I put to the Applicant, the Joint Director of the Human Rights Commission of Pakistan advised the Canadian Immigration and Refugee Board in April 2004 that, while members of Nawaz Sharif’s party had been harassed prior to the October 2002 elections, such harassment had decreased since then. She said that leaders had faced pressure to switch loyalties but that at the level of activists, workers and party members there had been fewer reports of harassment although some isolated incidents continued to take place (Research Directorate, Immigration and Refugee Board, “Pakistan: The treatment/detention of members, activities and workers of the Pakistan Muslim League (PML) and its student wing, the Muslim Student Federation (MSF), by the government and other opposition parties (June 2000 – March 2004), 5 May 2004, PAK42531.E).
The Applicant referred to the fact that Javed Hashmi, the president of the party, was still in custody but, as I put to the Applicant, this tends to confirm that, while the leaders may have had problems, activists and party members (as the Applicant claims to have been) did not. As I put to the Applicant, the independent evidence available to me which I put to him makes it difficult to accept that he was persecuted because of his involvement in Nawaz Sharif’s party in Pakistan in the past or that there is a real chance that he will be persecuted for that reason if he returns to Pakistan now.
Consequently, the Tribunal considered the issue of political persecution of Shahbah Sharif’s supporters and members of Mr Sharif’s party and considered that persons such as the applicant claimed to have been did not have problems or were not persecuted by reason of their political involvement. Consequently, this ground is not made out.
General comments
The Tribunal’s principal conclusion was that it did not accept the applicant’s claims. The Tribunal’s decision was essentially a credibility-based finding, one that as McHugh J said in Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at 423 [67] is the function of the primary decision-maker par excellence.
None of the applicant’s purported grounds of review have the effect of overcoming or undermining the Tribunal’s finding that:
Having regard to all the evidence before me I do not accept that the Applicant is telling the truth about his claimed involvement in the PML(N) and the problems he has claimed this has caused and will cause him if he returns to Pakistan now or in the reasonably foreseeable future … the Applicant’s evidence is internally inconsistent and contradictory and his claims do not accord with independent evidence available to me concerning the situation of members and activists of the PML(N) in Pakistan. (CB 133)
Conclusion
For the above reasons, jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Cameron FM.
Associate: Angela Chong
Date: 1 March 2007
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