SZINJ v Minister for Immigration - [2007] FMCA 1259

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZINJ v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 1259

MIGRATION – Review of Refugee Review Tribunal decision – applicant asserted factual matters before the Tribunal – findings of fact are for the Tribunal “par excellence” – Tribunal applied the “correct” or relevant legal test – applicant sought impermissible merits review – Tribunal dealt with applicant’s claims – no jurisdictional error in Tribunal’s use of independent country information – Tribunal complied with its statutory obligations – Tribunal made findings on the applicant’s claims – no jurisdictional error – application dismissed.

Migration Act 1958, ss.36(2), 422B

Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham[2000] HCA 1
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Abebe v The Commonwealth of Australia (1999) 197 CLR 510
VAO v Minister for Immigration & Multicultural Affairs [2002] FCAFC 31
VTAG v Minister for Immigration & Multicultural and Indigenous Affairs (2005) 141 FCR 291
NAHI v Minister of Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
Minister for Immigration and Multicultural and Indigenous Affairs v Lay Lat (2006) 151 FCR 212
SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62
SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63

Applicant:

SZINJ

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 814 of 2006

Judgment of:	Nicholls FM
Hearing date:	30 July 2007

Date of Last Submission:

30 July 2007

Delivered at:

Sydney

Delivered on:

7 August 2007

REPRESENTATION

Counsel for the Applicant:

Nil

Solicitors for the Applicant:

Nil

Counsel for the Respondents:

Ms T. Wong

Solicitors for the Respondents:

Clayton Utz

ORDERS

The reference to the first respondent be amended to read “Minister for Immigration and Citizenship”.
The application is dismissed.
The applicant pay the first respondent’s costs set in the amount of $4,650.00

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 814 of 2006

SZINJ

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

I have before me an application filed in this Court on 21 March 2006 and amended on 16 May 2006 seeking review of a decision of the Refugee Review Tribunal (“the Tribunal”), signed on 30 January 2006 and handed down on 21 February 2006, to affirm the decision of a delegate of the respondent Minister to refuse a protection visa to the applicant.

Background

The applicant is a citizen of Pakistan who arrived in Australia on

25 July 2005. On 8 September 2005, he lodged an application for a protection visa with the first respondent’s Department. On

14 September 2005, a delegate of the respondent Minister refused to grant a protection visa. On 17 October 2005, the applicant applied for review of that decision.
The applicant’s claims to protection are contained in his application for a protection visa (reproduced at Court Book (“CB”) 1 to CB 25), in a letter from the applicant to the first respondent’s Department (CB 26 to CB 29) and in the applicant’s application for review to the Tribunal (CB 50 to CB 53). The applicant also provided a bundle of supporting documentation at the Tribunal hearing which is reproduced at CB 59 to CB 71. The applicant claimed that he suffered political persecution in Pakistan due to his involvement with the Pakistan People’s Party (“PPP”).
The Tribunal’s “Findings and Reasons” in its decision record are reproduced in the Supplementary Court Book (“SCB”) at SCB 8.10 to SCB 10.9. The Tribunal “summarised the applicant’s claims” (at SCB 8.10 to SCB 9.3) as:
“The applicant claims that he was arrested because he and some other members of the PPP [Pakistani People’s Party] had plotted to disrupt a rally of the PML [a party opposed to the applicant’s party]. He claims that he was detained for a period of a month and then released on bail and he then went into hiding before coming to Australia. He claims that he was involved in the beating up of the PML member who had informed the police of their plans to disrupt the PML rally and that if he returns to Pakistan the brother of the victim along with other PML members will attempt to kill him.”
The Tribunal found:
1)On all the evidence that the applicant did not genuinely fear persecution by the Pakistan authorities or members of the Pakistan Muslim League (“PML”) (SCB 9.2).
2)It was not satisfied that there was a real chance the applicant would be persecuted by the PML if he returned to Pakistan (SCB 9.2).
3)It was satisfied that the applicant was not credible in respect of certain key aspects of his claim for protection (SCB 9.3).
4)At the hearing the applicant did not impress the Tribunal in his responses in giving evidence on several key elements of his claims (SCB 9.3).
5)On the basis of the membership card provided to it at the hearing, it accepted that the applicant was a member of the PPP (SCB 9.4).
6)However, it was not satisfied that the applicant was a person in leadership or in a prominent role or an active member of the PPP (SCB 9.4).
7)At the hearing, the applicant demonstrated a very limited grasp of relevant political events in Pakistan (SCB 9.5). The Tribunal gave examples and found this to be incongruent with a person claiming to be active within the PPP, and to be a local leader of the PPP (SCB 9.6).
8)It did not accept the applicant was involved in the beating of a member of the PML, and that the brother of the victim would seek to harm the applicant should he return to Pakistan (SCB 9.7). Further, it found the applicant’s evidence as to this claim was unpersuasive and lacking in detail, and when questioned in the hearing to provide more detail, it found the applicant appeared to be “making up the detail as he went along rather than recounting past experiences” (SCB 9.8).
9)As it did not accept the applicant was politically active in Pakistan with the PPP and did not accept that he was involved in the beating up of a PML member, it did not accept that the applicant faced harm from PML members on return to Pakistan by reason of his PPP activities and conflict with the PML (SCB 9.9).
10)Similarly, the applicant’s oral evidence in respect of his claimed arrest and prosecution was unclear and ambiguous. The Tribunal noted that he did not know the current status of his case in terms of whether charges were still outstanding against him, did not know of pending court appearances, claimed not to have had to attend court, and claimed that his lawyer had made several court appearances on his behalf but was vague about the details of these (SCB 9.10 to SCB 10.1).
11)In support of his claim that he was arrested, detained and charged by the Pakistani police, the applicant presented a number of documents to the Tribunal including a “First Information Report” (FIR), “Warrant of Arrest” and letter from his lawyer in Pakistan. But, when it sought to clarify the status of these documents, it found the applicant was “uncertain and contradictory” (SCB 10.3). It further found that given the ambiguity about the documents, it did not place weight on the documents as establishing the applicant’s claim that he was arrested and sought after by the authorities in Pakistan (SCB 10.2 to SCB 10.6).
12)Accordingly, for all the reasons above, it was not satisfied the applicant was arrested, detained, charged and pursued by the authorities of Pakistan in the past and that he faced harm from the authorities of Pakistan on his return there (SCB 10.8).
Having considered the evidence as a whole, the Tribunal was not satisfied that the applicant satisfied the criterion set out in s.36(2) of the Migration Act 1958 (“the Act”) and therefore affirmed the decision not to grant a protection visa (SCB 10.10 to SCB 11.1).
The applicant filed an amended application on 16 May 2006. This contains three lengthy paragraphs which for the most part assert factual matters before the Tribunal:
“1. That the applicant belongs to the Pakistan peoples party, the applicant was an active worker of his party. The applicant joined the party in the year 1991, the applicant was persecuted due to his political opinion, the applicant had the affiliations with the Peoples Student Federation, the applicant was very active member of the party, during the studentship as the applicant was very much impressed by the manifesto of the party. The applicant has under gone lot of hardship and difficulties while working for his party by the hands of the authorities. The applicant has suffered lot of persecution by the hands of the authorities and by the workers of the opposite party those who are playing in the hands of the army dictator.
2. That the PML was planning to hold a procession/demonstration the applicant and his fellow members planned to distribute the procession/rally as they were opponents of the PPP. This was because of the fact that the PLM was gaining more votes in that area, this was the reason that a bomb trick was used to distribute them. The PML and their colleagues were against the lives of the applicant. The element of the well founded fear was not taken into consideration by the second respondent, the respondents did not took into consideration the real meaning of the fear and the harassment under which the applicant has undergone by the authorities. That the procedure and the way of dealing with the matters like the applicant were not taken into consideration. The second respondent has gone to the extent that the applicant has got no case, this is all against all the principals of the legal and judicial system. This is also against the principles of natural justice, the learned member should not have used the terms and the meanings as they given in the term of the applicant. In the column of findings by the delegate of the minister it has been laid down that the case of the applicant or the claim of the applicant involves serious harm and systemic and discriminatory conduct, further the writer has gone to the extent which has been mentioned above. Instead the respondent number one has gone to the extent that the applicant has got no case. The respondent number one did not gave any considerations to the findings to the wordings of the applicant. The delegate than moved his position to other materials are absolutely are different , they have based their views and not findings to only the background of the Pakistani history, they have admitted the state violences against various religious and political parties, for instance they on the one hand discuss persecution and on the other hands they are denying the harassments and persecutions under which the applicant has undergone. It is not expected that a refugee shall bring the evidence with him while leaving his country of origin. The respondents have relied on the country information’s which are not up dated in any manners. The element of fear was not taken into consideration, similarly the respondents have failed to take into consideration the four key elements to be a refugees, although in the start of the decision they have given the general definition, but where the applicants fit there is no explanation given in the decision by the respondents. The failed to give weight to the claim of the applicant, instead they have relied up on the country information provided by the same country where the applicant escaped to save his life. When the fact is admitted that the applicant’s country is being ruled by the dictator than it is admitted that the applicant has undergone all the miseries as alleged. The respondent knowing that the civilian/elected government was over thrown by the army, than there is no doubts that the atrocities were committed by the authorities, they have gone to a different area of findings of the facts and the reasons. As one of the Christine man was done to death in the policy custody a women Passer by was shot dead, no action was taken by the authorities to take some action against the member of the security force. When all these matters are admitted than what was said and what is the reason that the applicant persecution and the harassments were totally ignored by the respondents. The applicant joined the movement for the restoration of the democracy, the applicant was bashed arrested and was put to fear of his life, the applicant had to suffer on one side by the workers of the opposite side and on the other hand by the authorities. The respondents have only given the back grounds of Pakistan but ignored the violations of the human rights. The life of the applicant was put in to the danger as submitted by the applicant in his statement of claim.
3. The Refugee Review Tribunal gave the verdict that the case of the applicant does not falls within the refugee law, it is submitted that in the refugee law and in the general laws of the refugee any person who cannot be given protection in any way can be given the protection. The applicant and his family was under the constant harassments of the authorities concerned. The RRT did not took into consideration the fact that the applicant was an active member of the political party, and is a person of importance as far as the acts of violence against the applicant are concerned. The applicant was released after many days, the applicant was kept in the lock up, the applicant was released after many days, the applicant took out the procession against the present regime, the applicant was made a victim by the hands of the authorities in his country of origin. the definition that any person who can not be given the protection can be given the protection. The applicant is not criminal as the applicant’s case was not considered by the RRT.
The tribunal did not make findings in relations to these claims, specifically whether the events might occur again and whether the applicant had a well founded fear of persecution on this basis. In these circumstances, the tribunal decision involved jurisdictional error.” [Errors in original].
The applicant was unrepresented at the hearing before the Court. He was assisted by an interpreter in the Urdu language. I note that at the commencement of the hearing the applicant requested that the interpreter, who was NAATI qualified in both the Urdu language and Punjabi language, use the Punjabi language as this was the language in which he felt most comfortable. The applicant was assisted by the interpreter in the Punjabi language for the duration of the hearing.
The applicant stated conditions are such that he cannot return to Pakistan and that he could not even return when his mother died. He also stated his father was not there. He asked the Court to allow him to stay in Australia and to be able to bring his children (who he claimed were in hiding) to Australia as they also could not stay in Pakistan. The applicant pressed this issue even after the Court had explained at some length the relevant difference between the role of the Tribunal and the Court and after hearing submissions from Ms Wong. I also gave the applicant a short adjournment prior to his making his final submissions so that he could consult with a friend who had accompanied him to Court and who was conversant in English and who had heard the Court’s attempt to focus the applicant on matters relevant to the judicial review that it was required to conduct.
It is difficult to discern clear grounds of review in the applicant’s amended application. No grounds are plainly stated. For the most part, the applicant asserts factual matters before the Tribunal, asserts the truth of his claims, states that he has suffered harm and persecution and complains that the Tribunal did not “give weight” to his claims. The applicant stated at the hearing before the Court that he had received assistance (not legal) in the drafting of the application.
To the extent that the applicant complains about the Tribunal’s findings of fact, I note that findings of fact, including findings on credibility, are for the decision maker (in this case the Tribunal) “par excellence” (see Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham[2000] HCA 1, per McHugh J. at [67]). To the extent that he seeks merits review, this Court cannot assist the applicant (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272). Further, in the circumstances before the Court there is no jurisdictional error even if the Tribunal had made a wrong finding of fact (which is not in any event demonstrated) (Abebe v The Commonwealth of Australia (1999) 197 CLR 510 at [137]).
In written submissions Ms Wong has sought to identify the following grounds from the amended application:
1)That the Tribunal failed to properly apply the relevant legal tests.
2)That the Tribunal did not give consideration to the applicant’s evidence.
3)That the Tribunal relied upon out of date country information.
In giving the applicant the greatest possible leeway the following could also be added for consideration:
4)That the Tribunal failed to provide natural justice to the applicant.
5)That the Tribunal failed to take into account relevant considerations.
Ms Wong fairly submits that where the amended application asserts:
“The element of the well founded fear was not taken into consideration by the second respondent, the respondents did not took into consideration the real meaning of the fear and the harassment under which the applicant has undergone by the authorities.
…the respondents have failed to take into consideration the four key elements to be a refugees”. [Errors in original].
that the applicant could be taken to assert that the Tribunal did not apply the “correct”, or relevant, legal tests to its determination as to whether the applicant had a well-founded fear of persecution for a Refugees Convention reason.
It must be said that on a plain reading of the amended application what the applicant really asserts is that given what he had said to the Tribunal, then it should have found that he was subject to harassment and that his fear was genuine. In other words the applicant seeks impermissible merits review.
However, giving leeway to an unrepresented applicant, even if the ground was that the Tribunal failed to apply the proper test, I agree with Ms Wong that even the plainest of readings of the Tribunal’s decision record reveals that the Tribunal well understood the relevant test. This is set out in the usual and unexceptional terms in its decision record (see SCB 2.6 to SCB 4.5), and that the Tribunal applied this test in determining that it could not be satisfied that the applicant had a well founded fear of persecution for a Convention reason. This ground does not succeed.
To the extent that various phrases in the amended application (“…not gave any consideration to…the wordings of the applicant”; “…failed to give weight to the claim of the applicant”; “The Tribunal did not make findings in relation to…claims”) may be seen as asserting that the Tribunal did not deal with all of the applicant’s claims, then on the material before the Court, such a complaint does not succeed.
As referred to above the applicant’s claims were variously asserted in his application for a protection visa (including in his accompanying statement at CB 26 to CB 29), in documents submitted to the Tribunal (CB 59 to CB 71) and at the hearing before the Tribunal on 18 January 2006. (The Tribunal’s unchallenged account of what occurred at the hearing is set out in its decision record at SCB 5.4 to SCB 7.10). There is nothing to show that the Tribunal failed to deal with all of the applicant’s claims and each element of the claims. This ground also does not succeed.

The amended application also complains that the Tribunal “relied on country information which are not updated in any manners”. If this is a complaint (as Ms Wong submits) that the Tribunal relied on old or out of date information, then I agree with Ms Wong that such a ground does not succeed.
The Tribunal did rely on independent country information. This was set out in its decision record at SCB 8.1 to SCB 8.9. The information was an extract from the “UK Home Office country assessment from Pakistan (dated April 2005)”.
There is nothing before the Court to show, nor does the applicant assert, that he submitted or referred the Tribunal to other more recent country information which the Tribunal ignored. As Ms Wong submits, in these circumstances, the Tribunal did not fall in to jurisdictional error. Nor is there any obligation on the Tribunal to seek out more recent information (VAO v Minister for Immigration & Multicultural Affairs [2002] FCAFC 31; VTAG v Minister for Immigration & Multicultural and Indigenous Affairs (2005) 141 FCR 291). To the extent that the applicant also seeks to challenge the Tribunal’s use and assessment of this information, then this is a factual matter for it (NAHI v Minister of Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [13]). This ground also does not succeed.
The amended application makes various references to “the principles of natural justice”, and that the Tribunal went “against” such principles.
I note that this is a case to which s.422B of the Act operates to make the matters set out in Division 4 of Part 7 of the Act the exhaustive statement of the matters with which it purports to deal (Minister for Immigration and Multicultural and Indigenous Affairs v Lay Lat (2006) 151 FCR 214 at 225 [66]; and SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62 at [8]). There is nothing to show any breach of the Tribunal’s statutory obligations in this regard.
The applicant was invited to a hearing before the Tribunal (CB 56 to CB 57). He was advised that he could provide further documents to the Tribunal. This was an opportunity which he utilised (see CB 59 and CB 71). The Tribunal did consider these documents albeit that it ultimately decided it could not place weight on them (SCB 10.6).
With reference to SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63 at [31] to [44], the Tribunal (from the Tribunal’s unchallenged account of what occurred at the hearing at SCB 5.4 to SCB 7.10), did give the applicant the opportunity to address what were the determinative issues in relation to the decision under review.
The Tribunal found the applicant was not credible in key aspects of his claims. These were his claims that he was a prominent or active member of the PPP, that he had beaten an opposition party member and that he had been arrested and prosecuted. All of these issues were discussed at the hearing. The Tribunal specifically reported that it discussed with the applicant its concerns about the “veracity” of his claims (SCB 7.7):
“The Tribunal discussed with the Applicant its concerns about the veracity of his claims, in particular the veracity of the documents. The Tribunal also raised with the Applicant that his level of political knowledge did not seem to accord with his claimed level of political activity and commitment. The Tribunal pointed out to the applicant that even if the Tribunal accepted his claims as he had presented them at the hearing then it would seem to be the case that the essential or significant reason for the Applicant’s fear of harm was not for political reasons but rather fear of revenge.”
The applicant was given the opportunity to respond (SCB 7.9).
Much of what the applicant claims the Tribunal failed to take into account or consider or “ignored” is really a complaint that the Tribunal did not accept the applicant’s claims and various integers of these claims. For example, at paragraph 2 of the amended application, the applicant claims the Tribunal “ignored the violations of human rights”.
However, the applicant’s third paragraph (which is somewhat unintelligible) does make at least one clear assertion: “That the Tribunal did not make findings in relation to these claims”. In context, this is a reference to the applicant’s claims before the Tribunal. I cannot see that this complaint can succeed. Each of the matters set out in paragraph 3 of the amended application was considered and dealt with by the Tribunal. That it did not do so to the applicant’s satisfaction does not reveal error on the part of the Tribunal.
Further, the Tribunal found that these claimed events had not occurred in the past. The applicant’s complaint that the Tribunal did not consider whether they would occur again, in these circumstances, is without merit.
I cannot discern jurisdictional error in the Tribunal’s decision either on matters raised directly by the application or otherwise. The application to the Court is therefore dismissed.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate:

Date: 7 August 2007