SZHUC v Minister for Immigration
[2006] FMCA 460
•17 March 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHUC v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 460 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming decision of a delegate of the Minister not to grant a protection visa to the applicant – applicant is a citizen of Pakistan – credibility. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), s.424,424A |
| Habib v Commonwealth [1999] 197 CLR 510 Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] 185 CLR 259 S20 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] 198 ALR 59 |
| Applicant: | SZHUC |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3618 of 2005 |
| Judgment of: | Scarlett FM |
| Hearing date: | 17 March 2006 |
| Date of Last Submission: | 17 March 2006 |
| Delivered at: | Sydney |
| Delivered on: | 17 March 2006 |
REPRESENTATION
| Solicitors for the Applicant: | Cross Law Solicitors |
| Counsel for the Respondent: | Mr Smith |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
I note the title of the First Respondent has changed to Minister for Immigration & Multicultural Affairs.
The application is dismissed.
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 3618 of 2005
| SZHUC |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL 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 that was handed down on 3rd November 2005. The applicant is a citizen of Pakistan who arrived in Australia in February 2005.
He applied for a protection class XA visa on 31st March 2005 but that application was refused on 24th May.
He applied for review to the Refugee Review Tribunal on
21st June 2005. The Tribunal invited the applicant to attend a hearing to give oral evidence and the applicant attended the hearing on
19th September 2005. The applicant told the Tribunal that he had a well-founded fear or persecution for reason of political opinion.
He said that he had become a member of the Pakistan People's Party known as the PPP and had been a member of that party since approximately 1985. In the last 1980's he had become a very active member of the party and he said that in 1995 he had been selected as political secretary to a Mr Humayun who was the president of the PPP in Gujranwala City.
Unfortunately Mr Humayun and several other people were murdered and the applicant claimed that he had gone into hiding for a period of time as a result of this murder, which he had witnessed, and feared that he too would suffer a violent death or injury as a result.
The applicant provided a copy of the first incidents report to the police which related to the incidents concerning the death of Mr Humayun and the other people. The persons said to be responsible were four sons of a political opponent of Mr Humayun, a Mr Siddique. The first incidents report indicated these four brothers armed with Kalashnikov rifles and several other people, ambushed two cars in which
Mr Humayun and members of his entourage were travelling.
The applicant fears that he will not be safe anywhere in Pakistan as a result of these activities and his involvement.
The applicant produced a number of documents including a press report of an attempt by someone to burn down a shop which the applicant owned. The Tribunal noted at page 73 of the Court book, that the newspaper report was inaccurate in that it said incorrectly that the applicant had been present at the time when it was accepted that the applicant was, in fact, in Australia. The Tribunal never asked the applicant why the Tribunal should put any weight on the remainder of the news report when one part of it was so obviously incorrect.
The applicant agreed that he had been in Australia at the time and repeated that a friend of his had seen the report in the newspaper and had sent it to him.
It is clear throughout the hearing that the Tribunal member entertained serious doubts as to the credibility of the applicant. At page 73 of the Court book and continuing on to page 74 the Tribunal says:
I indicated to the applicant, so that there was no misunderstanding, that I was suggesting that his claims were a complete fabrication. I noted that as I had said I had great difficulty in accepting that he had ever been involved in politics.
I also had difficulty in accepting that Mr Humayun's death had had anything to do with his involvement in politics. I also had great difficulty in accepting that the applicant had been associated with Mr Humayun or that he had been a witness to his killing. I put to the applicant that I thought he had fabricated his claims as a basis for his application for a protection visa.
The applicant said that he had had a lot of hard times since then and he had not got anything when he had worked for the party.
In the Tribunal's findings and reasons the Tribunal made it clear that the Tribunal found the applicant an unimpressive witness.
The Tribunal, at page 75 of the Court book, set out reasons why the Tribunal had a poor opinion of the applicant's credibility. The Tribunal noted also, at page 75, that the first instance report produced by the applicant as part of his case, relating to the killing of Mr Humayun, did not suggest that the killing had anything to do with the man's involvement in politics or that the applicant himself was a witness to the murder as he claimed. The applicant had said that the main reasons for killing had been that people had wanted to remove
Mr Humayun in order to get his position, in other words, he told the Tribunal that there was a political motivation.
The Tribunal, at page 76 of the Court book, accepted that Mr Humayun had been killed for the reasons suggested in the first instance report. The Tribunal went on to say, however:
However, having regard to the view I have formed of the applicant's credibility, I do not accept that he was Mr Humayun's personal assistant nor that he witnessed Mr Humayun's murder.
I do not accept that the applicant was involved in politics in Pakistan. I do not accept that following the killing of
Mr Humayun the applicant was threatened by Mr Humayun's political opponents nor that after he returned from spending six months in Peshawar he received threatening letters and calls nor that shots were fired at his house. I do not accept that as the applicant said at the hearing before me he was living in hiding, staying with relatives and friends after he returned from Peshawar nor that although he continued to run his business until he left Pakistan to come to Australia in February 2005, he only gave his employees instructions over the telephone. I do not accept that somebody tried to burn down the applicant's shop in July 2005 as indicated in the copy of a press report which he produced to the Tribunal. As I noted in the course of the hearing before me, the press report suggested the applicant was in Pakistan at the time whereas he was in Australia.
The Tribunal went on to refer to the documents produced by the applicant which he wished to use to corroborate his claims.
The Tribunal did not speak highly of that documentation. Again at page 76 of the Court book the Tribunal said:
I give greater weight to the impression I formed of the applicant at the hearing before me than I do to the various documents he produced in purported corroboration of his claims. I do not accept that the applicant genuinely fears that he will be persecuted for reasons of his claimed involvement in politics if he returns to Pakistan now or in the reasonably foreseeable future.
The Tribunal affirmed the decision of the delegate of the Minister not to grant a protection visa to the applicant.
The applicant commenced proceedings for judicial review of the Tribunal's decision and on 10 of this month filed an amended application. In that amended application the applicant sets out two grounds. First, that the Tribunal erred in making a finding not open to it in relation to the death of Mr Humayun, namely that his death had nothing to do with his involvement in politics, and in failing to come to a conclusion of the applicant's consequent fear for his own safety if he returned to Pakistan was Convention-based. The second ground is that the Tribunal erred in constructively failing to have regard to documents tendered by the applicant in support of his Convention claims, namely an email letter at page 34 and a newspaper report at page 52 and a party position card at page 51 of the Court book.
For the applicant, Mr Knaggs, solicitor relies on a written outline of submissions which he has prepared and forwarded to the Court, as well as an affidavit of the applicant. The affidavit was tendered and accepted by the Court as representing submissions rather than matters of an evidentiary nature.
In my view, as I indicated to Mr Knaggs at the hearing, his written submissions which he himself has prepared, is of greater value to him than the applicant's affidavit which tends to refer only to the factual conclusions reached by the Tribunal and attempts to challenge them, which appears to be an effort at merits review which is, of course, not permissible.
The written and oral submissions by Mr Knaggs for the applicant take issue with first of all the Tribunal's finding that the death of
Mr Humayun did not have a political motivation but a personal motivation and the subsequent findings as to the applicant's credibility and second, related to the tribunal's approach to the documentation.
Quite properly, Mr Knaggs did not seek to challenge the Tribunal's finding that the applicant was not a man of credit but pointed out to the Court that the Tribunal did not go so far as to suggest that the documentations were forged.
Dealing with the Tribunal's finding that the applicant had nothing to do with the late Mr Humayun or in fact, had anything to do with the political matters referred to, the submission goes that the Tribunal's findings are in fact illogical and are of such a lack of logic that they could not reasonably have been made. The written submissions refer to the evidence and in my view err on the side of an attempt at merits review rather than relating to failure to consider relevant consideration or other matters which give rise to jurisdictional error.
It is a matter of note that a Court conducting judicial review cannot review the merits of the Refugee Review Tribunal's decision and I refer to Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] 185 CLR 259 at 272 . Even if the Tribunal makes a wrong finding of fact, this is not a jurisdictional error. I refer to Habib v Commonwealth [1999] 197 CLR 510 at 137.
The assessment of credibility is purely a task for the decision-maker and I note that for the applicant it is not sought to challenge the assessment of the applicant's credibility. One thing that must be remembered is that these proceedings are not a hearing on the merits and it is not a hearing de novo. The Court does not have the jurisdiction to consider its own view of the facts and substitute its own view of the facts for that of the Tribunal member.
It may well be that on taking a view of the murder of Mr Humayun that a conclusion could be reached that there was some political involvement in that murder but the Court does not have the power to substitute that view for the view taken by the Tribunal. There was evidence, to my mind, which permitted the Tribunal to form the view that the long-standing enmity or the feud between Mr Humayun and Mr Siddique was a personal matter and not a political matter.
The evidence to my mind, based on the first incidents report produced by the applicant as part of his case, is sufficient to allow a finding to be made on the basis of that evidence that the killing was personally motivated rather than politically motivated.
In any event, the Tribunal's finding as to the credibility of the applicant goes not just to the factual finding about the murder of Mr Humayun. The Tribunal's findings are that whether or not Mr Humayun's murder was politically motivated, that the applicant was not involved.
The Tribunal did not believe that the applicant was there; did not believe that the applicant did, in fact, have that working relationship with Mr Humayun, or that he was active in politics generally as he claimed; and there is evidence upon which the Tribunal is entitled to make that finding, particularly relating to the applicant's lack of knowledge about the elections in Pakistan which were close to the death of the unfortunate Mr Humayun and he claimed that he was not involved in the electoral process. In my view that evidence was sufficient to allow the Tribunal to make the findings that it did. Credibility findings are factual findings.
The other issue which is an issue of some interest, relates to the documentation produced by the applicant to corroborate his claim.
Mr Knaggs argued there that the documents were, in fact, powerful documents which would indeed show that the applicant's claim should be accepted in a number of respects. If the documents are genuine, they are intensely powerful, Mr Knaggs submitted; they show that the applicant was a witness to the murder of Mr Humayun.
What the Tribunal did not do, as Mr Knaggs submits, is put its suspicions or its disbelief about the documents to the applicant so that the applicant had a chance to answer those. There is no doubt that the Tribunal put the Tribunal's disbelief about the applicant's evidence and his own credibility fairly and squarely to the applicant in the passages to which I have referred and quoted making that quite clear. What the Tribunal did not do is make any finding about the documents, whether they were in fact genuine or not genuine.
For the respondent Minister, Mr Smith, submits that the Tribunal did deal with the documents because the Tribunal, in fact, referred to them. No transcript of the Tribunal hearing has been produced in support of the claim that the documents were not in fact dealt with by the Tribunal. The documents had been produced by the applicant and to some extent they corroborated his claim but the Tribunal made it quite clear that the Tribunal did not believe the applicant himself and that the relevance of the documents did not take the matter any further.
The Tribunal was not required to address the question of the documents.
Mr Knaggs, for the applicant, takes issue with the Tribunal's finding at page 76 of the Court book:
I give greater weight to the impression I formed of the applicant at the hearing before me than I do to the various documents he produced in purported corroboration of his claims.
Mr Knaggs submits that this is a somewhat unusual way of dealing with the matter in that by referring to the word 'purported' he casts doubt on the documents without going so far as to find that they are not genuine.
I am not of the view that there is a requirement of the tribunal to make that point. I am of the view that as was set out in S20 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] 198 ALR 59, that this is a case where the credibility of the applicant had, in the Tribunal's mind, been destroyed by the quite comprehensive findings about credibility made by the Tribunal. Because the Tribunal had made these extensive findings about the credibility of the applicant, the Tribunal to my mind, was at liberty to attach no weight to any purportedly corroborative material that the applicant may well have sought to rely upon.
As Mr Smith submitted, the Tribunal formed a negative view of the applicant's credibility. It looked at the material produced in support of the applicant but was of the view that the applicant's lack of credibility outweighed any weight that the documents may have had. It was open, in the view of the credibility findings, for the Tribunal to reach that conclusion and again, in my view, the submission which was made on behalf of the respondent is one which emerges clearly from this case that this was a paradigm example of a credibility case that, with respect, encapsulated the Tribunal's findings. The Tribunal's negative findings as to the applicant's credibility outweighed anything else and that the documents produced in support of the applicant could not redress the situation of such comprehensive findings against the applicant's credibility.
I am of the view therefore, that no jurisdictional error has been shown and that the application must be dismissed.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 28 March 2006
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