SZINP v Minister for Immigration & Anor - [2007] FMCA 1423

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZINP v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 1423

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming religious persecution in Pakistan – Tribunal finding the applicant was not subject to serious harm for a Convention reason for five years before his departure, and that he had no well founded fear of future harm – no reviewable error found – application dismissed.

PRACTICE AND PROCEDURE – Observations on the actions of the applicant’s former solicitor.

Migration Act 1958 (Cth), s.425

Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630

Applicant:

SZINP

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 641 of 2007

Judgment of:

Driver FM

Hearing dates:

19 June, 25 June and 20 August 2007

Delivered at:

Sydney

Delivered on:

20 August 2007

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondents:

Ms A Mitchelmore

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The applicant has leave to file an application seeking recovery of the costs against Mr Douglas Knaggs, the applicant’s former solicitor, the subject of order 3 made on 19 June 2007 and order 7 made on 25 June 2007 within 28 days of today’s date.
The Court directs that any such application be served personally on Mr Knaggs and that a sealed copy of the application be served by ordinary pre-paid post on the Minister’s solicitors.
The Court directs that a copy of today’s hearing transcript be obtained and placed on the Court file.
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 $4,200.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 641 of 2007

SZINP

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

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 Tribunal”). The decision was signed on 11 January 2007 and was apparently handed down on 6 February 2007. The Tribunal 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 based upon his Shi’a religion. Relevant background concerning the applicant's claims and the Tribunal decision on them are set out in written submissions filed on behalf of the Minister on 14 June 2007.

I adopt as background for the purposes of this judgment para.s2 through to 12 of those written submissions.
The applicant is a citizen of Pakistan. On 9 March 2005, he arrived in Australia and on 22 April 2005 he applied to the Department of Immigration and Multicultural Affairs for a protection visa (court book (CB) 129).
In a typewritten document attached to his visa application (CB 23-24), the applicant claimed that he was a Shi’a Muslim, which Muslim sect was outnumbered by Sunni Muslims in the village where he resided. In 1994, the applicant claimed he was attacked by Sunni Muslims and during the ensuing melee, both attackers and attacked were jailed. Following their release pursuant to a court order, one of the Shi’a Muslims was again attacked and left for dead on the street. Although the eight men responsible for his death were jailed, they were able to send death threats to other Shi’a Muslims, including the applicant.
The applicant claimed that after they were released, these men began to harass him. Although the applicant left his village and moved from place to place, his attackers followed him. In January 2005, the applicant claimed that they abducted him while he was waiting for a friend in that friend’s car, from which he managed to escape by pretending that he had to go to the toilet. After this incident, the applicant claimed that he hid himself away until he left Pakistan on 8 March 2005.
On 20 June 2005, a delegate of the Minister refused the applicant’s protection visa application (CB 29).
On 25 July 2005, the applicant lodged an application for review of the delegate’s decision with the Tribunal (CB 39). Following a hearing by the Tribunal, the applicant submitted a handwritten document in which he enlarged on some of his claims (CB 47). The applicant also attached a number of other documents, including an English translation of a First Information Report (FIR) lodged at a police station in East Town, Sarghoda. The FIR recorded a break, enter and kidnap which took place on 27 April 2005 and was said to involve the applicant as one of the perpetrators (CB 54).
On 23 February 2006, the Tribunal handed down a decision affirming the decision of the Minister’s delegate (CB 82). The applicant applied to this Court for judicial review of the Tribunal’s decision, and on 4 October 2006 Brewster FM made orders by consent remitting the matter to the Tribunal to be determined according to law (CB 103; 129).
By letter dated 26 October 2006, the Tribunal invited the applicant to attend a hearing before it on 27 November 2006 (CB 105). The applicant accepted the invitation and attended on that date, but said he was not well enough to give evidence and the hearing did not proceed (CB 136). A further invitation dated 4 December 2006 was sent to the applicant, inviting him to attend a hearing on 9 January 2007 (CB 115). The applicant accepted this further invitation and the hearing proceeded on that date (CB 136).
On 6 February 2007, the Tribunal handed down its decision affirming the decision of the Minister’s delegate (CB 127). After summarising the applicant’s claims, and the evidence given by the applicant both to the first Tribunal and to it, the Tribunal accepted that the applicant was a national of Pakistan, and that he was a Shi’a Muslim. However, the Tribunal was not satisfied that merely being a Shi’a Muslim was sufficient to give rise to a well founded fear of persecution in Pakistan. In this respect, the Tribunal noted that the applicant did not refer to facing any serious harm after 1994 and, apart from various claims he made about a number of individuals in his home village, did not claim that he himself had been subjected to any religiously motivated harm after that time.
In relation to the events of 1994 on which the applicant relied in his application, the Tribunal considered it plausible that he was among a number of Shi’a Muslims who were attacked in the village. The Tribunal was also satisfied that the applicant left the village in 1994 for a combination of reasons, “being the general pressure on Shi’a Muslims to leave, and the fact that he feared some harm arising from giving evidence to the authorities about a particularly violent attack” (CB 142). However, the Tribunal also noted the applicant’s evidence that he lived in the city of Sarghoda between 1994 and 2000 without being located or harmed by anyone, and that he lived in Lahore for his final five years in Pakistan, during which period there was only the one incident, being the theft of the car in which he was a passenger in January 2005. The Tribunal was not satisfied that those responsible for that incident “were anything more than ordinary criminals intent on stealing a vehicle”, and that they said “nothing to suggest that they knew or cared about his identity, history or religion” (CB 143).
Accordingly, the Tribunal was satisfied that the applicant “lived in the city of Lahore, primarily at a single address, for some five years before his departure from Pakistan, without ever being harassed or harmed by the individuals who apparently continue to live in his village”. In so far as the applicant relied on the FIR alleging that he committed a crime on 27 April 2005, the Tribunal considered that since its provenance could not be established with any confidence, it did not consider it to be a reliable source of evidence. The Tribunal took this view having regard to reliable country information to the effect that document fraud is “absolutely pervasive” in Pakistan (CB 143).
The Tribunal concluded (CB 143-144):
I accept that [the applicant] is fearful of being harmed for the reason of his religion in part because of his experience in his village in 1994 of the harassment of Shi’a Muslims by some local Sunni Muslims. However he did not claim that he had been subjected to any religiously motivated harm after 1994. I am satisfied, and find, that he was not subjected to any harm for the Convention reason of his religion during his last ten years in Pakistan. There is no real chance that he will suffer harm amounting to persecution for the reason of his religion in the future.
In sum, I am satisfied that [the applicant] has lived in Pakistan for some ten years without being located or harmed by anyone from his village, or by anyone who wished to harm him either because of his religion or for revenge. On that basis I am satisfied that the chance of his being harmed in Pakistan by the people he claims to fear, or for the reason of his religion, is remote.
Further, he has stated that the particular individuals he fears wish to harm him out of revenge, because he gave evidence against them in court, leading to their being imprisoned. I am satisfied that the essential and significant reason for the harm he fears at the hands of these people is not his religion or any of the other reasons set out in the Convention.
This matter has a somewhat protracted and unfortunate history. The proceedings began with a show cause application filed on 23 February 2007. The applicant was at that time represented by a solicitor,

Mr Douglas Knaggs. The application was filed within time. The application was supported by a very short affidavit annexing a copy of the Tribunal decision.
The matter came before me on the first time on 16 March 2007. At that time the applicant was represented by Mr Knaggs. I made procedural orders to progress the application to a final hearing, which was to be on 19 June 2007.
On 19 June 2007 the applicant appeared alone. Some issues of concern were raised concerning conduct of the applicant's solicitor, Mr Knaggs. I adjourned the hearing of the application and awarded the Minister costs thrown away fixed in the amount of $800. I also required

Mr Knaggs to show cause on 25 June 2007 why he should not bear the costs that the applicant was required to pay.
Mr Knaggs and the applicant appeared on 25 June 2007. At that time I required Mr Knaggs to serve a notice of withdrawal and adjourned the hearing again to today. I gave the applicant the opportunity to file an amended application and further evidence.
I adjourned, to a date to be fixed, the question of whether Mr Knaggs should pay the costs awarded against the applicant by order 3 made on

19 June 2007, or in addition, costs I ordered the applicant to pay in

order 7 made by me on 25 June 2007.
Mr Knaggs filed a Notice of Ceasing to Act on 25 June 2007.

I proceeded on the basis today that he had withdrawn from the record. I invited Mr Knaggs to attend today's Court hearing on the basis that he may have an interest in doing so in relation to his personal costs liability. Mr Knaggs has not attended.
The applicant filed an amended application on 20 July 2007. The second ground in that application was apparently intended to support an adjournment application. The applicant states that as the Court is aware, Douglas Knaggs is no longer acting as his solicitor and that

Mr Knaggs had promised to mail to the applicant his documents including a court book which had been filed on 3 April 2007. I received that court book as evidence.
The applicant asserts that Mr Knaggs had not sent the applicant's documents to him. The applicant states that he wanted to collect his documents personally from Mr Knaggs' office but that Mr Knaggs had moved office and the applicant had been unable to contact him by telephone.
The applicant had a copy of the court book with him when I came on the bench this morning. He told me that this had been sent to him two days ago by the Minister's solicitors. It was apparent that he was seeking an adjournment. He told me that not having the court book had prevented him from seeking alternative legal representation.
I rejected that proposition because the applicant was aware on 25 June 2007 that he had lost the services of Mr Knaggs, and that was well after the court book had been filed. The applicant could have obtained another copy of the court book from the Minister's solicitors much earlier, should he have wanted one. He has had plenty of time to arrange alternative legal representation. I decided not to adjourn this hearing any further.
Very surprisingly, my associate received a telephone message from

Mr Knaggs during the course of this morning's hearing. Mr Knaggs gave my associate to understand that he understood the applicant was on Level 16 at Queens Square. The applicant had separately told me from the bar table that Mr Knaggs had asked him to go to the registry at Queens Square this morning, but he had not done so.
In a telephone conversation with my associate Mr Knaggs said that he had prepared a written submission for the applicant, but he had expected the applicant to attend the registry to file it himself, as

Mr Knaggs could not do so. Mr Knaggs faxed through a copy of the written submissions to my associate during the course of the hearing. The applicant, having had the document read to him by the interpreter adopted the submission as his own. In the light of that I gave leave for the submissions to be filed in Court.
The continuing dealings between the applicant and Mr Knaggs, after

Mr Knaggs had ceased acting for him, and in circumstances where

Mr Knaggs had allegedly refused to return the applicant's documents to him, are to say the least, very curious.
I direct that the hearing transcript of today's hearing be obtained and placed on the Court file. It may be necessary at some future time to have regard to it for some further purpose. I understood from the applicant that he remains desirous of obtaining a costs order against

Mr Knaggs. It may be that there is some connection between that desire and Mr Knaggs' continuing assistance to him after he had ceased to act.
The applicant now relies upon his amended application filed on

20 July 2007. The first ground in that application is an assertion of procedural unfairness which logically bears upon the Tribunal's obligations under s.425 of the Migration Act 1958 (Cth) (“the Migration Act”). The applicant asserts that he was sick at the time of the hearing before the Tribunal but the Tribunal refused to adjourn the hearing. The applicant also asserts some detriment in having to attend a video conference hearing from the Griffith Police Station.
I see no significance in the fact that the Tribunal conducted a hearing by video link. The applicant lives in Griffith and the opportunity afforded him to attend a hearing from there was a convenience to him. There is nothing to indicate that the video link hearing had the effect of preventing the applicant from presenting his arguments and answering questions.
The hearing conducted by the Tribunal on 9 January 2007 was an adjourned hearing. The Tribunal deals with the circumstances in its reasons on page 136 of the court book. Relevantly, the presiding member says:
[The applicant] made no written submissions to the present Tribunal. He confirmed in writing that he wished to attend the hearing. On 21 November 2006 the Tribunal received by fax a medical certificate certifying that he had been seen at Griffith Base Hospital for a “medical condition” and would be “unfit for work” until 26 November 2006 inclusive. As the hearing was to be held on 27 November 2006, he was advised that in the absence of a further medical certificate it would go ahead. He appeared at that hearing but said that he was too unwell to give evidence.
The Tribunal then refers to the hearing on 9 January 2007. The presiding member states:
[The applicant] gave oral evidence with the assistance of an Urdu speaking interpreter. As noted above the initial hearing was postponed because he told the Tribunal that he was not well enough to give oral evidence. The Tribunal therefore took no evidence from him on that day, and the hearing resumed and was completed on 9 January 2007.
The Tribunal decision is silent on the question of whether the applicant asserted to be or was unwell on 9 January 2007. The court book contains at page 108 the medical certificate dated 20 November 2006. The court book also contains four file notes on pages 109 to 112 concerning the consideration of whether the hearing on 27 November 2006 should be adjourned. It is apparent from those documents and the record of the Tribunal decision that the Tribunal gave careful consideration to that issue of an adjournment, and did adjourn the hearing when the applicant asserted sickness.
A further medical certificate appears on page 123 of the court book. That medical certificate relevantly states that the applicant was seen at the Griffith Hospital on 8 January 2007 for a medical condition. It further states that he was unfit for work from 8 January 2007 to

9 January 2007 inclusive. The doctor's remarks refer to shoulder pain.
In his oral submissions the applicant asserted that he was mentally unwell on 9 January 2007. The medical certificate does not support that assertion. It appears that the medical certificate was faxed to the Tribunal from the Griffith library at 8.40 am on 8 January 2007.
There is no evidence before me that the presiding member was aware of the medical certificate dated 8 January 2007. Neither is there any evidence that the applicant followed up transmission of that medical certificate in the same way that he did in relation to the first medical certificate.
Further, in the absence of a transcript, there is no evidence of whether the applicant sought an adjournment orally at the hearing or claimed any sickness. Given the careful consideration to the question of an adjournment in November, it would have been inconsistent for the Tribunal to say nothing in relation to a second medical certificate or a second request for an adjournment.
I infer from the Tribunal's complete silence on that issue that the presiding member was unaware of any request of an adjournment of the hearing on 9 January 2007. In the circumstances, there was no unfairness in the Tribunal proceeding with the hearing on that day, and no breach of the Tribunal's obligations under s.425 of the Migration Act.
Grounds 3 and 4 of the amended application deal with documents tendered by the applicant to the Tribunal. Ground 3 concerns a document that the Tribunal specifically referred to in its reasons. Ground 4 deals with other documents that were not specifically referred to.
The Minister's submissions deal with those issues in para.s14 to 16. I agree with those submissions and adopt them for the purposes of this judgment.
Contrary to the first ground of the application, the Tribunal did not conclusively find that any of the applicant’s tendered documents were forgeries. The Tribunal noted that there was reliable independent country information to the effect that document fraud was “absolutely pervasive”. In the course of the hearing before the Tribunal, the applicant agreed that it was easy to obtain fraudulent documents in Pakistan, but insisted that the documents he had submitted from various official sources were all copies of genuine documents. In response to his insistence, the Tribunal told the applicant “that he should be aware that, because it was so easy to get fraudulent documents in Pakistan, I could not rely on those documents alone and would be relying more on his oral evidence” (CB 137).
Ultimately, the only document the Tribunal referred to in its Findings and Reasons was the one that alleged the applicant was involved in criminal activity in Pakistan subsequent to his arrival in Australia. While the applicant relied on this document to show that he remained the subject of charges in Pakistan, the Tribunal took the view that since its provenance could not be established with confidence, it did not consider it to be a reliable source of evidence (CB 143). The Tribunal thus expressly considered the only document upon which the applicant relied to advance a claim that it did not accept.
The fact that the Tribunal did not expressly refer to the other documents in giving its decision does not of itself constitute a failure to consider them. As the Full Court of the Federal Court stated in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630, it is “plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons” (at 641 [46]):
The tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised ‘with an eye keenly attuned to error’. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.

The applicant was put on notice at the hearing that the Tribunal had a serious concern about document fraud in Pakistan. The relevant discussion is recited on page 137 and 140 of the court book.
Given the Tribunal's concerns about document fraud, the Tribunal was entitled not to accept the first information report tendered by the applicant as proof that the applicant had been charged with a criminal offence.
In any event, if the applicant had indeed been charged with an offence, he had a ready answer to it, as the presiding member pointed out to the applicant. The applicant could not have committed the offence with which he was purportedly charged because he was in Australia at the time and his passport proved it.
I find that the applicant has failed to demonstrate any jurisdictional error by the Tribunal. Neither is any jurisdictional error apparent to me from my own reading of the material.
I have taken into account the written submissions faxed through to the Court this morning by Mr Knaggs. Those submissions addressed the issues already raised in the amended application. Paragraph 3 of the submissions purport to raise an additional issue, that the applicant suffered serious harm in Pakistan amounting to persecution. That paragraph is an attack on the merits of the Tribunal decision and is therefore beyond the scope of this proceeding.
I find that the Tribunal decision is a privative clause decision and hence the application must be dismissed. I will so order.
The application having been dismissed, costs should follow the event. The Minister seeks an order for costs fixed in the amount of $4,200. Scale costs in this instance would be $5,000. The applicant did not wish to be heard on costs. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application fixed in the sum of $4,200.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Driver FM

Deputy Associate:

Date: 23 August 2007