SZICT v Minister for Immigration - [2006] FMCA 915

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZICT v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 915

MIGRATION – RRT decision – Pakistani claiming political persecution – disbelieved by Tribunal – no arguable jurisdictional error – application dismissed at show‑cause hearing.

Federal Magistrates Court Rules 2001 (Cth), rr.44.05, 44.12, 44.12(1)(a)
Migration Act 1958 (Cth), s.476

Applicant:

SZICT

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG139 of 2006

Judgment of:

Smith FM

Hearing date:

13 June 2006

Delivered at:

Sydney

Delivered on:

13 June 2006

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the First Respondent:

Mr A Crockett

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application is dismissed under Rule 44.12 on the ground that it does not raise an arguable case for the relief claimed.
The applicant must pay the first respondent’s costs in the sum of $2,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG139 of 2006

SZICT

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application under r.44.05 of the Federal Magistrates Court Rules 2001 (Cth) (“the Rules”) seeking an order that the respondents show cause why a remedy should not be granted in exercise of the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) (“the Migration Act”) in relation to a decision of the Refugee Review Tribunal (“the Tribunal”) handed down on 15 December 2005. The Tribunal affirmed a decision refusing to grant a protection visa to the applicant.
The application was returnable at a first court date before me on 8 February 2006. The Court had arranged for an Urdu interpreter to attend on that day but it is unclear from the Court’s records whether the applicant was in attendance. He was represented by a solicitor who appeared, and filed a notice of appearance. Orders were made giving the applicant an opportunity to file an amended application and any additional affidavits by 26 May 2006 after receiving a bundle of relevant documents. The Court’s written orders drew attention to the fact that the application was listed today for a hearing under r.44.12, and that the application might be dismissed if I were not satisfied that it had raised an arguable case for the relief claimed.
The applicant’s solicitor subsequently filed a notice of ceasing to act. The applicant has not filed any additional affidavits nor an amended application, and has appeared today without a legal representative.
The applicant’s application for a protection visa and application for review by the Tribunal were supported by written statements by him, including a statutory declaration and what were claimed to be three corroborative documents in English and some in Urdu. In brief, he claimed to fear persecution in his country of nationality, Pakistan, as a result of his involvement in a political party, the Muslim League. In particular, he claimed that in May 1998 a member of a rival party was killed in the course of an election. Although the applicant was not present at the incident, he and several other people, including some relations, were charged and prosecuted, and they became the subject of violent vendetta brought by the political supporters of the deceased person. Some of the persons charged were found guilty, including some of his relations, but he claimed that he had never returned home and “[had] moved around constantly, frightened of being found by the police or the murdered man’s family” until coming to Australia in 2005 after visits to other parts of the world. His statutory declaration claimed:
I fear that if I am forced to return to Pakistan I will be hurt or killed by [the brother of the deceased] and his supporters in the Jamiat party, or by the police, who are influenced by the bribery and political clout of [that person] and the Jamiat party. As far as I know, I am still wanted by police.
The corroborative documents in English were what was claimed to be a typed “First Information Report” (“FIR”) about the 1998 incident, a party card for the Muslim League, and a handwritten letter dated 30 September 2005 purporting to be from a legal advocate in Daska (Sialkot) telling the applicant in English: “If you come back in Pakistan you must be arrested and can be convicted and sentenced to death. In these circumstances I advice you live in Austrial”.
The applicant attended a hearing held by the Tribunal, in which he gave more details and explained how his application had been presented. The Tribunal’s statement of reasons gives a very full description of its hearing and of the concerns which it put to the applicant.
Under the heading “Findings and Reasons”, the Tribunal gave its reasons for being unable to accept that the applicant “was effectively in hiding in Pakistan from May 1998 until he left the country in June 2005”. It said:
As I put to the Applicant, I do not accept that it is credible that he would have gone into hiding in May 1998 as a result of a false case which was brought against him by his political opponents who he says were people from the Jamaat-e-Islami. As I put to the Applicant, the PML(N), the party to which he claims to have belonged, was in power at the time both at the national level and in Punjab (DFAT cable IS2346, dated 5 February 1997, CX21690). Even if, as the Applicant says, the Jamaat-e-Islami candidate, Abdul Rehman, won the local election and a person called Nuri from the PPP had been elected as the representative of his local area in the elections in 1997, I do not accept that their influence at the local level would have outweighed the fact that the PML(N) was in power both nationally and in Punjab. The Applicant referred to the fact that the Musharraf Government had subsequently come to power but, as I put to him, this did not happen until October 1999 (US State Department, Country Reports on Human Rights Practices for 2003 in relation to Pakistan, Introduction). I do not accept that the Applicant would have had any reason to go into hiding as a result of a false case brought against him in May 1998, as he claims.
The Tribunal also referred to having difficulty accepting that the applicant “would have been able to evade the authorities for over seven years”, and said that fraudulent documents were readily available in Pakistan. It referred to the facts that the letter from the lawyer was written in English and appeared to have been created specifically to provide support for the protection visa application.
The Tribunal summarised its reasons and conclusions:
Having regard to the problems I have with the Applicant’s evidence as outlined above I do not accept that he is telling the truth about his reasons for having left Pakistan. I do not accept that a false case was brought against him by his political opponents in May 1998, as he claims, nor that he was living in hiding in Pakistan from May 1998 until he left Pakistan to come to Australia in June 2005. I do not accept that the documents which the Applicant has produced in purported corroboration of his claims – the PML membership card in the name [‘A’], the three slips in Urdu which he said were asking him to come to meetings or demonstrations organised by the PML, the FIR or the letter from a lawyer – are genuine or that the facts stated in them are true. I do not accept that there is a real chance that the Applicant will be arrested, prosecuted, subjected to an unfair trial or convicted, for a Convention reason, if he returns to Pakistan now or in the reasonably foreseeable future nor do I accept that there is a real chance that he will be hurt or killed or otherwise persecuted by anyone else for a Convention reason if he returns to his home in Pakistan.
I am not satisfied that the Applicant has a well‑founded fear of being persecuted for a Convention reason if he returns to Pakistan. It follows that he is not a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Consequently the Applicant does not satisfy the criterion set out in paragraph 36(2)(a) of the Migration Act for the grant of a protection visa nor is he the spouse or a dependant of a person who holds a protection visa as required by paragraph 36(2)(b).
On my consideration of the material in the Court Book and the Tribunal’s reasons, I am unable to see any arguable ground of jurisdictional error affecting the Tribunal’s conclusion or procedures. As appears above, its decision turned clearly upon its rejection of the credibility of the applicant’s foundation claims.
The applicant’s application to this Court contained three grounds of review:
1.That the learned member of the RRT acted in a way that it has resulted in unfairness of the proceedings the tribunal did not took the evidence in a fair way.
2.That the RRT failed to take in to account the fear of life and harm to the applicant. The RRT conducted the case in an unnatural way.
3.That the real question before the RRT remained unsolved. The RRT has committed the jurisdictional error as the RRT went into uncalled questions from applicant.
Prior to today’s hearing, the applicant was served with a written submission prepared by the solicitor for the Minister, which submits that these grounds do not show any arguable basis for the relief sought. His arguments were further explained to the applicant today.
Essentially, the grounds set out in the application do not even raise an arguable case in the technical sense. In relation to Ground 1, the applicant does not identify the “unfairness of the proceedings” which is relied upon, nor identify any action by the Tribunal or other circumstance which is alleged to have produced that unfairness.
In relation to Ground 2, the application does not make any particular criticism which would allow the Court to identify jurisdictional error arising from the concerns expressed. No particular refugee claim by the applicant is identified which is argued not to have been addressed by the Tribunal.
In relation to Ground 3, the argument that is sought to be made is obscure, and I am unable to identify any arguable substance.
On my reading of the Tribunal’s decision, it has clearly identified the refugee claims made by the applicant. I can understand the applicant’s concern that they have not been accepted by the Tribunal, but in my opinion they have been addressed by the Tribunal, and it has rejected them upon a finding of credibility based on what in my opinion are rational grounds which were open to the Tribunal on the material.
I can see no argument raised by the application, nor anything that the applicant has said to me today, which satisfies me that the application has raised an arguable case for the relief claimed. I consider it is appropriate for me to exercise the power to dismiss the application at an interlocutory stage under r.44.12(1)(a) of the Rules.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 5 July 2006