SZIYE v Minister for Immigration
[2007] FMCA 478
•5 April 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZIYE v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 478 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – application dismissed. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.91X, 422B, 424A, 476 Federal Magistrates Court Rules 2001 (Cth), rr.44.11, 44.12 |
| Abebe v Commonwealth (1999) 197 CLR 510 NAHI v Minister for Immigration [2004] FCAFC 10 |
| Applicant: | SZIYE |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG1704 of 2006 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 8 March 2007 |
| Delivered at: | Sydney |
| Delivered on: | 5 April 2007 |
REPRESENTATION
| Advocate for the Applicant: | The applicant appeared in person with the assistance of a Urdu interpreter |
| Solicitor for the Respondents: | Ms K McNamara of DLA Phillips Fox |
ORDERS
The name of the first respondent be amended to read ‘Minister for Immigration and Citizenship’.
The application filed on 15 June 2006 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1704 of 2006
| SZIYE |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The proceedings
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) invoking s.476 of the Migration Act 1958 (Cth) (“the Act”) filed in the Sydney Registry of the Federal Magistrates Court of Australia on 15 June 2006 for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal decision was made on 21 April 2006 and handed down on 16 May 2006, affirming a decision of a delegate of the first respondent made on 6 December 2005, refusing to grant the applicant a Protection (Class XA) visa. The applicant seeks relief against the decision of the Tribunal.
The applicant in these proceedings is not to be identified pursuant to s.91X of the Act and has been given the pseudonym “SZIYE”.
The applicant seeks an order that the first respondent show cause why a remedy should not be granted in the exercise of the Court's jurisdiction under s.476 of the Act. Pursuant to r.44.11(c) of the Federal Magistrates Court Rules 2001 (Cth) (“the Rules”) I dispense with a hearing under r.44.12 as requested by the applicant and set the matter down for a final hearing.
A Court Book (“CB”) prepared by the first respondent’s solicitors was filed on 18 July 2006 and is marked Exhibit “A”. It was read into evidence.
Background
The Tribunal decision of R. Wilson, reference N0552972, provides the following background information. The applicant claims to be a citizen of Pakistan and arrived in Australia on 19 October 2005. On 7 November 2005, he lodged an application for a Protection (Class XA) visa with the Department of Immigration under the Act. On
6 December 2005, a delegate of the Minister refused to grant a protection visa and notified the applicant of the decision and his review rights by letter dated 6 December 2005. On 30 December 2005, the applicant applied to the Tribunal for review of the delegate’s decision.(CB 153)
Applicant’s claims
In the Tribunal decision under the heading ‘Claims and Evidence’, the following information as contained in the applicant’s protection visa application is summarised by the Tribunal.
The applicant is a Sunni Muslim married man born in Khaniwal (Punjab) Pakistan. He has two brothers living in Pakistan. He has had 16 years of education and graduated from the Punjab University, Lahore. He speaks, reads and writes Punjabi and Urdu and reads and writes English. He stated that his occupation before coming to Australia was General Secretary of the Pakistan Muslim League (Nawaz Group) (“PML(N)”). He left Pakistan because his life was in danger and seeks protection in Australia because he ‘has big trouble’. He stated that he cannot return to Pakistan because ‘government agencies and other people following me, and they can kill me on politation (sic) activities.’ The Pakistani authorities “cannot solve inside problems in country as (sic) Government level. Even Government do (sic) not have protection”.(CB 155)
Ms McNamara in her written submissions provides a summary of the applicant’s substantial claim and I adopt paragraph 5 of her submissions:
5.In his Protection Visa Application (PVA) the applicant claimed that he and his family members had been tortured and threatened because of his political activities. The details of his claims were as follows.
5.1 He was General Secretary of the Pakistan Muslim League (Nawaz Group) (Vehari District) (‘PML’) for the six years from 1998 to 2005.
5.2 In December 1999 he was kidnapped and held for two days. His captors beat him and demanded information about his party’s political activities. He was injured and required hospitalization for two weeks.
5.3 Over the last five years people from government agencies had physically and mentally tortured him and his family, and threatened them by phone many times. He had lost his business, his property and his life was in danger.
Tribunal’s findings and reasons
I also adopt paragraphs 6 to 17 of the first respondent’s written submissions which sets out the procedure adopted by the Tribunal in its decision:
6.In a letter dated 11 January 2006 the RRT informed the applicant that several circumstances put his credibility in doubt. These were that the applicant had no trouble leaving Pakistan and that he waited almost a month after his arrival in Australia before applying for a protection visa. The RRT also informed the applicant that there was country information that showed that the PML was not banned following the coup.
7.In a second letter dated 11 January 2006 the RRT asked the applicant to supply the documents he referred to in his PVA and to advise the RRT if he maintained the claims he made in his PVA and attached statement.
8.In a letter dated 20 January 2006 the applicant supplied a reference from Mrs Tehmina Daultana, which referred to the applicant as President of the Muslim Student Federation (‘MSF’) from 1995 to 1998. He also supplied a hospital discharge slip, a police report with a translation and country information.
9.In a letter dated 25 January 2006 the RRT informed the applicant that typographical errors in the reference purportedly from Mrs Tehmina Daultana suggested that the document was fraudulent and that the RRT had country information that showed fraudulent documents were readily available in Pakistan. It also Informed the applicant that database searches failed to yield any result connection his name with the PML. The RRT pointed out that the Daultana reference claimed for the first time that the applicant was President of the MSF, and that this appeared to the RRT to be a recent fabrication. All of this put the applicant’s credibility in doubt.
10.At the hearing on 7 February 2006 the applicant again claimed to have been General Secretary of the PML for his district and President of the MSF. In contrast to his PVA application he stated that he had been hospitalised for only a few days. He discussed the circumstances giving rise to the police report he supplied in his letter of 20 January 2006. He denied knowledge of the claim on his Visitor Visa Application that he was a sports reporter, saying that he had signed a blank form. The RRT handed the applicant a letter informing the applicant that the inconsistency between his claims to be a political activist arid the claim on his Visitor Visa Application to be a sports reporter, cast doubt on his credibility as did the lack of evidence to support his claim to have been President of the MSF. The RRT invited the applicant to comment, in writing.
11.In a letter dated 17 February 2006 the applicant reasserted his claims of office in both the PML and the MSF.
12.In a second letter dated 17 February 2006 the applicant again stated he was a political activist and not a sports reporter, and that he had just signed an application form.
13.On the 27 February 2006 the applicant supplied three more references In support of his claim. On 1 March 2006 the RRT replied in writing with the observation that specific features of these references cast doubt on their authenticity and further doubt on the applicant’s credibility.
14.On the 16 March 2006 the RRT wrote to the applicant informing him that they had information that Sikander Doltana was General Secretary of the PML in Vehari between 1998 and 2005, and that Lugman Cheema was President of the MSF in Vehari between 1995 and 1998. The RRT pointed out that this information contradicted the applicant’s claims and his supporting references, and that the RRT believed his claims to be manufactured and the applicant’s credibility to be ‘in issue’.
15.On the 29 March 2006 the RRT received a fax from the PML in support of the applicant’s claims. The RRT reproduced this without comment.
16.The RRT’s decision to uphold the delegate’s refusal is based on a finding of adverse credibility. The RRT found that other people hold the positions the applicant claimed to have held and that the applicant had supplied at least four fraudulent documents to support his claim. It also found that the applicant had supplied false information to DIMA in his application for his Visitor Visa. It accepted that while applicants may act with uncharacteristic guile to deceive authorities to leave a county in which they face persecution, in the circumstances of the present case, this last finding added weight to the adverse credibility finding.
17.The applicant’s PVA claims were repeated and elaborated in support of his review application and the RRT gave the applicant extra time to submit documents. The RRT sent the applicant a number of 424A letters detailing the circumstances on which it based its finding of adverse credibility and gave him numerous opportunities to respond.
Application for review of the Tribunal’s decision
On 15 June 2006, the applicant filed an application for review in this Court under s.39B of the Judiciary Act. In accordance with orders made at the first Court date, the applicant filed an amended application on 18 September 2006, which contained the following grounds:
1.That the applicant belongs to Pakistan Muslim League Nawaz Group. The applicant was the general secretary of the PML Nawaz Group in the district Vehari, the applicant was an active worker and an important office holder of his part. The applicant was persecuted due to his political opinion, the applicant was a very well known man of the party within the front line leraders of the PML Nawaz Group. After taking over by the Army Regime in the year 1999, the applicant was open to lot of persecution , the applicant was harassed , and was bashed by the opposite group and the authorities on different accessions. Those days many of the front line members either were made to left the country or they were involved on different cases. All the known leaders were treated in the same way and the manners to which they never deserved including the applicant.
2.That the applicant was kidnapped by the persons belonging to the state authorities , they kidnapped the applicant and kept him for a long time , the applicant has given the details in his statement , and supported the same version during the course of the interview . The applicant was badly bashed, beaten was made to undergo lot of torture though out the period of his confinements, the applicant was made a hostage for a long times as submitted . The applicant was told during the times of the confinements that since he belongs to the PML Nawaz Group he is being torturing, and the applicant would further under go this torture, the degree of the torture was so severe that the applicant became senseless The applicant remained in hospital after these persons left the applicant in a deserted area, the applicant was than taken to hospital in the senseless situation , the applicant remained in hospital for a long time, the applicant has given a full count during the course of the interview. As submitted above the applicant has undergone lot of physical and mental torture. The element of well founded fear was not taken in to consideration by the second respondent , the respondents did not took in to consideration the real meaning of the tear 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 taker in to consideration - This is also against the principles of the natural justice , the learned member should not have used the terms and the meanings as they given in the case of the applicant . The applicants case involves serious harm and systemic and discriminatory conduct this is contradictory in the case of the applicant . 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 which are absolutely are different , they have based their views and not findings to only the back ground of the Pakistani history , they have admitted the state violence’s against various religious and political parties, for instance they on the other hand discuss the 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 in to consideration, similarly the respondents have failed to take in to 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 the weight to the claim of the applicant, instead they have relied up on the country information provided by the same country from where the applicant escaped to save his life. When the fact is admitted that the applicants 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 police 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 those matters are admitted than what was 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 , 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 . The documentary evidence was not given any importance’s, rather it was held that the documents from Pakistan are not reliable , the applicant has no yard stick to satis& the respondents as they are and they are not ready to accept any submission or the documents from the applicant.
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 can not 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 in to 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 kidnapped and was tortured as submitted above definition that any person who can not be given the protection can be given the protection . The applicant is not criminal as such the applicants 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. (copied without alteration or correction)
Submissions and reasons
The applicant appeared as a self-represented litigant with the assistance of an Urdu interpreter. He confirmed that he had not filed any written submissions but did make oral submissions. He said that he had supplied all the documents requested by the Tribunal and answered all of its questions. He submitted that the Tribunal made three or four mistakes in respect of those documents. He maintained that they were genuine, in particular, a letter from the Central Secretariat of the PML(N) sent directly from the Office of the Central Secretariat (Islamabad) to the Tribunal on 29 March 2006.(CB 143) He submitted that he had not handled the letter. Also, that the letter answered all the objections to the previous material as it was by direct communication, issued by the party office and signed by the Central Secretariat.
The applicant then made submissions in respect of other documents he provided to the Tribunal, including documents about his hospital treatment and a release form from police detention. He submits that the Tribunal did not properly assess them because it believed they were fraudulent. The applicant also made statements substantially restating his claims. He did not specifically identify errors in the Tribunal decision but in effect sought a merits review of the Tribunal decision.
Ms McNamara indicated that she would rely upon her written submissions, save for some additional points she wished to bring to the Court’s attention. In the s.424A letter forwarded to the applicant on 16 March 2006 (CB 141) raised the issue of the identity of the General Secretary of the PML(N) between 1998 and 2005 and the President of the Muslim Student Federation in the Vehari District between 1995 and 1998. The Tribunal pointed out to the applicant that the material that it had received from its Department of Foreign Affairs and Trade (DFAT) resources indicated that in both cases, persons other than the applicant held those positions. The Tribunal said that the information provided by DFAT contradicted the applicant’s claims and the three letters provided by the applicant’s referees. This indicated that the applicant’s claims had been manufactured, that his documents were fraudulent and his credibility was in issue. The Tribunal decision addressed the fact that the applicant did not respond to this information when it was provided to him for comment pursuant to s.424A.(CB 168)
In another letter dated 7 February 2006, the Tribunal raised the issue of the applicant’s employment as a sports reporter with News Network International and his travel to Australia for coverage of the Johnnie Walker Super Cricket Series.(CB 131) It was on this basis that the Department provided the applicant with a visitor visa. That letter also raised the issue of one of the applicant’s references, which stated that he was a member of the Muslim Student Federation from 1995 to 1998. The Tribunal queried why this information was not in the applicant’s protection visa application. This put the applicant’s creditability in issue and the Tribunal sought an explanation. When this was put to the applicant during the Tribunal hearing, he said that he had signed a blank form and provided it to an agent at the airport and that he knew nothing in respect of employment or the granting of a visitor visa.
Contrary to the oral submissions made by the applicant, Ms McNamara took the Court to the Tribunal decision where it referred to the applicant’s documents and found that they were false and carried no weight.(CB 168)
Ms McNamara submits that the applicant was provided with an opportunity to explain these inconsistencies. The applicant was sent five separate s.424A letters, expressing the Tribunal’s concerns with the applicant’s evidence and inviting him to clarify. I accept
Ms McNamara’s submissions that the Tribunal’s finding was open to it and supported by the independent country information available through DFAT.
The first respondent submits that the amended application restates the applicant’s refugee claims and expresses dissatisfaction with the Tribunal decision. It is submitted that this Court cannot review the merits of the Tribunal decision: Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 at 272. Also that there is no error of law, let alone a jurisdictional error, in the Tribunal making a wrong finding of fact: Abebe v Commonwealth (1999) 197 CLR 510 at [137].
The first respondent’s written submissions state that the applicant failed in his review before the Tribunal because it did not find him credible. The finding in relation to credit was open to the Tribunal on the material before it. The reasons show that the Tribunal considered the applicant’s credibility in light of the material he submitted, his responses to its s.424A letters and his oral testimony at the Tribunal hearing.(CB 168-169) The Tribunal found the applicant’s claims and evidence implausible, uncorroborated and inconsistent with country information. The findings made by the Tribunal were based on rational grounds and arrived at after consideration of matters that were logically probative of the issue of creditability: Kopalapillai v Minister for Immigration (1998) 86 FCR 547 at 558 to 559. Ms McNamara submits, and I accept, that the Tribunal’s credibility findings were open to it on the evidence and were not plainly perverse. Accordingly, its findings are not vitiated by jurisdictional error.
The applicant claims he was denied natural justice because elements of his claims were not taken into consideration by the Tribunal. The first respondent submits that this ground was not particularised and clearly attempts to traverse the merits of the Tribunal’s decision. In support, Ms McNamara relied on the submissions made above at [17].
Ms McNamara drew the Court’s attention to the operation of s.422B of the Act, which applies to this decision. It is submitted that the applicant failed to demonstrate that the Tribunal breached any of its statutory obligations contained in Division 4 of Part 7 of the Act. The applicant was given every opportunity to present his case and respond in writing to the concerns of the Tribunal. Five separate letters were forwarded to the applicant, as considered in some detail at [16] above.
The applicant claims that the Tribunal relied on out of date country information. This appears in the second ground of the amended application:
The respondents have relied on the country information’s which are not up dated in any manners.
I accept the first respondent’s submissions that the weight to be given to country information is entirely a matter for the Tribunal in deciding the merits of the applicant’s case: NAHI v Minister for Immigration [2004] FCAFC 10.
The first respondent’s written submissions address the applicant’s complaint in respect of the Tribunal finding of fraudulent documents. The applicant takes issue with the Tribunal’s use of the documentation he provided in support of his claims. It is submitted that the Tribunal did not suggest that all documents from Pakistan are fraudulent. Direct evidence that a document is fraudulent will not always be necessary: Minister for Immigration v Djalal (1998) 51 ALD 567. There is no error of law in the Tribunal rejecting corroborative evidence based on its view of the applicant’s credit: Re Minister for Immigration; Ex parte Applicant S20/2002 (2003) 198 ALR 59 per McHugh and Gummow JJ at [49].
I accept the first respondent’s written submission that the Tribunal’s findings in respect of the applicant’s documents were open to it based on its earlier findings on the applicant’s credit. I do not believe that any jurisdictional error arises from these findings.
When the applicant was asked whether he wished to reply to the first respondent’s submissions, he repeated that he had responded to whatever the Tribunal had asked. He also repeated the claim that the letter forwarded by the Central Secretariat of the PML(N) had been given directly to the Tribunal without his intervention and therefore could be relied upon.
Conclusion
The applicant in these proceedings has not identified any jurisdictional error supported by particularisation. The amended application filed in the proceedings is a restatement of the applicant’s claims and claims of jurisdictional error by the Tribunal. I am satisfied that none of the identified grounds can be sustained. As the applicant was self-represented and unable to clearly identify or articulate a jurisdictional error, I have reviewed the Court Book and the Tribunal decision. On the face of those documents, I am not satisfied that any jurisdictional error on the part of the Tribunal arises. Consequently, the application should be dismissed.
I am satisfied that an order for costs should be made in this matter. I order that the applicant pay the first respondent’s costs and disbursements of and incidental to this application.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
Date: 3 April 2007
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