SZJAW v Minister for Immigration
[2007] FMCA 60
•22 January 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJAW v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 60 |
| MIGRATION – Application to review decision of Refugee Review Tribunal – no jurisdictional error. |
| Migration Act 1958 (Cth), ss.91R, 424 Federal Magistrates Court Rules |
| NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) (2004) 144 FCR 1 SZEEUv Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2 VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 123 |
| Applicant: | SZJAW |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG1914 of 2006 |
| Judgment of: | Barnes FM |
| Hearing date: | 22 January 2007 |
| Delivered at: | Sydney |
| Delivered on: | 22 January 2007 |
REPRESENTATION
| Applicant: | In Person |
| Counsel for the Respondent: | Mr B O’Donnell |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The application is dismissed.
The applicant shall pay the first respondent’s costs fixed in the sum of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1914 of 2006
| SZJAW |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 22 June 2006 affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa. The applicant claimed to be a citizen of Pakistan. He last arrived in Australia (after an earlier visit in 2005) on 28 September 2005. He applied for a protection visa on 30 December 2005. The application was refused by a delegate of the first respondent on 3 March 2006. The applicant sought review by the Tribunal. He attended a Tribunal hearing. After the Tribunal affirmed the decision of the delegate the applicant sought judicial review in proceedings commenced in this court on 11 July 2006.
The applicant claimed to fear persecution on the basis of his political opinion. In particular he claimed to fear arrest or death as a result of his membership of and activities with the Pakistan Muslim League- Nawaz (PML-N). He claimed to have been harassed and detained by security authorities as a result of his party membership and activities.
It is relevant to note that it emerged in the Tribunal hearing that there were some inconsistencies between the claims made by the applicant in connection with his written application for a protection visa and the claims that he made at the Tribunal hearing. The Tribunal accepted the applicant’s oral evidence that both his protection visa application and his business visa application had been prepared by other people and that he was not fully briefed on the statements made in them. The Tribunal found, however, that such difficulties as this situation caused for the applicant at hearing:
“were in no case germane to the grounds upon which he was seeking protection. I will therefore ignore them and evaluate his claims on their own merits.”
On that basis the Tribunal went on to consider the applicant’s claims to fear persecution as a result of his political activities. However, it found that when it had pressed the applicant as to what his activities were, the answers that he gave had been very vague. The Tribunal recorded that initially the applicant had said that “people thought he could do this or that” and finally that “he was always talking about the party”. However the Tribunal found that his knowledge about the history of the party was thin and that he knew nothing of recent reporting on the activities and policies of the head of his party. (In its account of the Tribunal hearing the Tribunal stated that it had raised with the applicant the Charter of Democracy signed by the leaders of the PML-N and the Pakistan Peoples Party on 14 May 2006 of which the applicant was unaware.)
Based on the applicant’s limited knowledge of his party, the Tribunal was prepared to accept that he was a supporter of the party but not that he had any role proselytising on behalf of the party or any other role or position which would bring him to the notice of political or religious elements opposed to his party. It had regard to his lack of education, lack of knowledge about the party’s platform and limited knowledge about its history. It did not accept his claims that he had been called to appear before anyone or that there was a real chance of such a thing happening in the future or that he was in hiding or living away from his home when he returned to the Pakistan after a visit to Australia between June and September 2005. The Tribunal did not believe that returning to Pakistan was the act of a person with a fear of arrest or death.
Hence the Tribunal did not accept that there was a real chance that the applicant would suffer harm amounting to persecution for reason of his religion or political opinion or for any other Convention reason should he return to Pakistan in the foreseeable future. Accordingly it affirmed the decision under review.
The applicant relies in these proceedings on an amended application filed on 8 August 2006. That amended application contains a number of grounds. The first, which the applicant elaborated on in oral submissions, is that the Tribunal “did not fully understand the applicant’s unfortunate circumstances in which he had to flee his country for his well-founded and Convention-based fear of persecution.” In oral submissions the applicant claimed that the Tribunal was not aware of the circumstances in Pakistan and of the absence of implemented rules and regulations. He claimed that the leader of the party to which he had belonged had been expelled from Pakistan and hence he was also at risk.
As a generally expressed ground this ground seeks merits review which is not available in this court. The claim that the Tribunal was not aware of circumstances in the applicant’s home country appears to take issue with the manner in which the Tribunal relied on independent country information or the nature of the information before it. I note that the decision of the delegate indicated that the delegate could only be guided by country information available to her in relation to the situation in Pakistan. There is no suggestion that the applicant put country information to the Tribunal in relation to the situation in Pakistan.
The Tribunal reasons for decision, the only evidence for what occurred in the Tribunal hearing, indicate that the Tribunal questioned the applicant in relation to the situation in Pakistan including drawing his attention to the recent Charter of Democracy. The Tribunal summarised country information in relation to the history of the Muslim League in Pakistan. It clearly had regard to such information in its finding that when asked about the history of the party, the applicant’s knowledge was thin and he knew nothing of recent reporting on the activities and policies of the head of his party.
The weight to be given to particular items of country information is a matter for the Tribunal. The fact that the applicant takes issue with the Tribunal’s use of its country information and hence its understanding of the situation in Pakistan is not such as to establish jurisdictional error on the material before the court.
The applicant also indicated in oral submissions that he had not had the time or the opportunity to obtain supporting information from Pakistan. I note the passage of time between the lodging of his protection visa application and the Tribunal decision. There is nothing in the material before the court to indicate that he sought time from the Tribunal to provide it with further information. Nothing in the claims that he makes about the Tribunal’s use of independent information or the situation in Pakistan establishes jurisdictional error on the part of the Tribunal.
Insofar as the applicant now seeks further time in order to provide more information to the court, the court’s role is not merits review but to determine whether the Tribunal made a jurisdictional error on the information available to it at the time of the Tribunal decision.
Grounds 2 and 3 in the amended application are that the Tribunal “stated that the Applicant’s answers about his party activities were very vague but … failed in its duties not to send him a letter under s.424 (sic) of the Act, invitation him to comment on Tribunal observations during his oral evidence” and that he “should have been given a chance to clarify his ‘vague’ situation and his role in the party”. These grounds refer to s.424 of the Migration Act 1958 (Cth). The applicant is self-represented and I have considered both s.424 and s.424A, which is addressed in the written submissions of the first respondent.
Section 424(1) of the Migration Act provides that in conducting a review the Tribunal may get any information that it considers relevant. However, if it does so it must have regard to that information in making the decision. As set out above, the Tribunal referred to independent country information to which it had regard in making its decision. Sub-section (2) provides that the Tribunal may invite a person to give additional information, but is not under an obligation to do so. The applicant’s claims do not establish a failure by the Tribunal to comply with either sub-s.424(1) or 424(2) of the Migration Act.
No failure to comply with s.424A of the Act is established. While s.424A(1) requires the Tribunal to give an applicant particulars of any information that it considers would be the reason or a part of the reason for affirming a decision under review, it is well established that the concept of information does not extend to the Tribunal’s subjective appraisals, thought processes or determinations; see the authorities cited by Finn and Stone JJ in VAF v MIMIA [2004] FCAFC 123 at [24] and also see the discussion of Allsop J in SZEEUv MIMIA [2006] FCAFC 2 of the concept of “information”. The Tribunal’s view that the applicant’s answers on his party activities were “vague” was part of the Tribunal’s thought processes and not information which had to be put to the applicant for comment under s.424A.
Nor was the Tribunal under any obligation to give the applicant a further opportunity to clarify his situation and his role in the party. There is nothing in the material before the court to indicate that the Tribunal failed in any way to comply with its obligations under 425 of the Act to invite the applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review.
The next three grounds in the amended application take issue with the Tribunal observation that the applicant knew nothing of recent reporting on the activities and policies of the head of the PML-N Party. The applicant claimed that the Tribunal failed to take into account that the leader had been deposed and exiled on terms that he would not release press statements and that there was “virtually a media blackout” for the family of the former leader, so that no one, including his party activists knew about the ‘strategies or policies’ of the leader during those times. On this basis it was claimed that, except for a few people, no one in Pakistan knew about the leader’s activities in the Middle East or Europe.
As contended for by counsel for the first respondent, a difficulty with this argument is that even if there were such a blackout in Pakistan, the applicant was in Australia at that time. More pertinently, the applicant’s claims in this respect do not establish a jurisdictional error on the part of the Tribunal. It is clear from the Tribunal reasons for decision that one of the matters that it took into account in relation to the applicant’s lack of knowledge was the introduction and operation of a Charter of Democracy on May 16 2006 as well as information about a possible boycott of the then upcoming elections in Pakistan Its reasoning in this respect involved a consideration of the likelihood that the sort of party activist the applicant claimed to be (who would be persecuted by the government or its opponents) would be the sort of person who would keep abreast of statements by his party leader and information about such activities while in Australia.
Further, the Tribunal not only had regard to the applicant’s lack of knowledge about recent reporting on the activities and policies of the head of the party, but also to his limited knowledge about the history of the party and vague answers to specific questions about his activities and the basis for his fears. In those circumstances the Tribunal findings were open to it on the material before the Tribunal. Insofar as the applicant seeks merits review, merits review is not available in this court and these grounds do not establish a jurisdictional error.
Ground 7 in the amended application is that the Tribunal ignored and failed in its duties to act according to the law because “people like the applicant,” that is, activists of the Nawaz League, were said to be “systematically persecuted and chased by government authorities so that they were not able to think or do anything about their party reorganisation or regrouping”. This appears to be an argument that people who had been systematically harassed by the Pakistani Government (such as the applicant claimed to be) could not engage in major party activities.
However, there is nothing in the material before the court to indicate that such claim was before the Tribunal at the time that it made its decision. As stated in NABE v MIMIA (No.2) (2004) 144 FCR 1 at 61, a Full Court of the Federal Court:
The Tribunal is not required to consider claims not raised by the applicant unless those claims arise clearly on the material before it.
The applicant has not pointed to, nor is there apparent in the material before the court, any information to suggest that there was before the Tribunal either such a claim or information to suggest that party activities were suppressed in this way such as to require the Tribunal to consider such a claim. In any event, the Tribunal rejected the applicant’s claims to have had a role of significance for other reasons, that were open to it on the material before it.
Ground 8 is an allegation that the Tribunal did not understand or did not properly apply the concepts of “serious harm” and “systematic and discriminatory conduct” in s.91R(1) of the Act. Reference was made to particular claims that the applicant had made about what had occurred in Pakistan. It is also claimed that the Tribunal should have given the applicant an opportunity to invite him to comment on the Tribunal reservations under s.424 of the Act.
First in relation to s.91R, the Tribunal did not reject the applicant’s claims on the basis that the harm he claimed to fear was not systematic and discriminatory or serious harm. Rather it did not believe that the applicant would suffer the claimed harm at all. No jurisdictional error is established in relation to the Tribunal’s approach based on section 91R.
There was no obligation on the Tribunal to give the applicant an opportunity to comment on the Tribunal reservations under the Migration Act. Insofar as there is intended to be a reference to s.424A of the Act, the applicant has not pointed to material which could be said to constitute information that the Tribunal considers would be a reason or a part of the reason for affirming the decision under review. Rather he takes issue with the Tribunal thought processes. As discussed above s.424 does not operate in the manner contended for by the applicant.
Finally, the applicant claims that he fears serious harm for political reasons and that the Tribunal should have given him every opportunity in accordance with the Migration Act to prove his genuine fear and entitlement to a protection visa. This ground seeks merits review which is not available in this court.
The applicant raised a number of issues in oral submissions, some of which I have addressed. Insofar as he repeated his claims to be a worker in the PML-N party and to fear persecution in Pakistan he seeks merits review which is not available in this court. As indicated, the Tribunal’s findings that he was a member of the party but not of sufficient standing or prominence as to make it likely that he would be targeted for persecution as claimed were findings that were open to the Tribunal on the material before it and not such as to demonstrate jurisdictional error. The Tribunal gave reasons for its findings including vagueness in the applicant’s answers, his ignorance of recent events and other matters as set out above.
The applicant also indicated during his submissions that he sought permission to work and for the court to grant him permission to stay in Australia. As I explained to the applicant, the court cannot grant him permission to work in these proceedings. Nor is merits review available in this court.
He reiterated that the leader of his party (a former Prime Minister) had been expelled and because he had difficulties so would the applicant face difficulties. Again, in this and other respects in which the applicant asserted his claims to fear persecution in Pakistan, merits review is not available in this court and such claims do not establish that the Tribunal fell into jurisdictional error.
Hence the application must be dismissed. The applicant has been unsuccessful and the first respondent seeks costs in the sum of $5,000, consistent with the provisions of the Federal Magistrates Court Rules. The applicant told the court that he had no permission to work and could hardly survive himself, that he had three children in Pakistan and that he was unable to pay the costs in the absence of permission to work.
However the applicant’s impecuniosity is not a reason for not awarding costs in a case such as this, although it may be a matter to be taken into account by the Minister in determining when and how to seek to recover such costs. The amount sought is appropriate in light of the nature of this and other similar cases, consistent with the provisions of the Federal Magistrates Court Rules.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date: 7 February 2007
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