SZJBW v Minister for Immigration

[2007] FMCA 125

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJBW v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 125

MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91S; 424A; 424A(1); 474; pt.8 div.2

Minister for Immigration and Multicultural Affairs v Rajalingam (1999) FCR 220
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Abebe v Commonwealth of Australia (1999) 162 ALR 1
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
Re: Minister for Immigration and Multicultural Affairs; ex; parte Durairajasingham (2000) 168 ALR 407
Minister for Immigration and Multicultural and Indigenous Affairs v Jia [2001] HCA 17
SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668
NADH v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328
VFAB of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 102
WABC of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 286
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559

Applicant: SZJBW

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG1997 of 2006

Judgment of: Emmett FM

Hearing date: 6 February 2007

Date of last submission: 6 February 2007

Delivered at: Sydney

Delivered on: 16 February 2007

REPRESENTATION

Applicant appearing on his own behalf

Solicitors for the Respondent: Ms Z. Brauer, Clayton Utz

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1997 of 2006

SZJBW

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 19 June 2006 and handed down on 29 June 2006.

2. The applicant was born on 13 August 1969 and claims to be from Pakistan and of Asian ethnicity and Islam faith (“the Applicant”).

3. The Applicant arrived in Australia on 11 November 2005, having legally departed from Lahore on a passport issued in his own name and a subclass 456 visa issued on 28 October 2005.

4. On 9 December 2005, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural Affairs (“the Department”) under the Act.

5. In his protection visa application, the Applicant claimed that he feared persecution by his second cousin and other family elders because he refused to support his second cousin as a candidate in the local elections in Pakistan. The Applicant claimed that he supported another candidate of good character. The Applicant also claimed that, following the election, in which his second cousin lost, other family members blamed the Applicant for his second cousin’s loss. The Applicant claimed that his second cousin and other family members tried to take over his property, threatened to kill him and put him in jail. The Applicant also claimed that threats were made to his mother and spouse.

6. On 2 March 2006, a delegate of the First Respondent (“the Delegate”) refused the Applicant’s application for a protection visa on the basis that the Applicant is not a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (“the Convention”).

7. On 31 March 2006, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal. Before the Tribunal, the Applicant also claimed that charges were framed against him because he was a Sunni leader and that he was attacked by Shi’as people at the beginning of 2005, during festival time. The Applicant further claimed that, in September 2005, he was attacked because he voted for someone else in the election and that person won. On 19 June 2006, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.

8. On 19 July 2006, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.

Legislative framework

1. Section 65(1) of the Act authorises the decision-maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision-maker is not so satisfied then the visa application is to be refused.

2. Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees.

3. Australia has protection obligations to a refugee on Australian territory.

4. Article 1A(2) of the Convention relevantly defines a refugee as a person who:

   “owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”

5. Section 91R and s.91S of the Act refer to persecution and membership of a particular social group when considering Article 1A(2) of the Convention.

The Tribunal proceeding

1. The Tribunal confirmed that it had the Department’s file of relating to the Applicant before it and that the Applicant gave oral evidence to it.

2. The Tribunal noted the claims made by the Applicant in his protection visa application and noted that the Applicant made no new claims in his application for review.

3. The Tribunal explored with the Applicant various aspects of the Applicant’s claims.

4. The Tribunal noted that it told the Applicant that it had difficulty accepting his evidence as credible and that his claims at the hearing were different in a marked degree from the claims he had made in his application for protection.

5. The Tribunal noted that it asked the Applicant why he did not mention that he was a leader of the Sunni and that he feared harm from Shi’as in his application for protection and noted the Applicant’s response that when he came to Australia in the first days he did not know what to do. The Tribunal noted that the Applicant stated he did not include the claims about the Shi’as and being a Sunni leader because he was not aware of the rules and regulations and he did not know how to lodge his application. The Tribunal noted that the Applicant stated his friend had told him he had a limited time to lodge his application and so he engaged a migration agent. The Tribunal noted that the Applicant confirmed that he had assistance in the preparation of his application for a protection visa. The Tribunal noted that it asked the Applicant why he had not mentioned his fear of harm from Shi’as in Pakistan in circumstances where he now told the Tribunal that it was the major reason why he left Pakistan. The Tribunal noted the Applicant’s response that he said he was in a rush when he made the application and he did what he could and was almost late in lodging the application.

6. The Tribunal noted that the Applicant referred to documents in support of his claims that complaints were made against him by Shi’as but that his friend had had difficulty in getting the documents. The documents were referred to by the Tribunal as “FIR documents”. The Tribunal noted that it asked the Applicant how he managed to exit his country if these “FIR documents” were in existence, which the Applicant alleged were official reports upon him. The Tribunal noted the Applicant’s response that his friend planned it all secretly and made arrangements for him to leave. The Applicant stated that the police were after him in Pakistan but as they had no photographs they could not properly identify him.

7. The Tribunal told the Applicant it would postpone the hearing until 8 June 2006 to enable the Applicant to provide further documents in support of his claims.

8. On 26 May 2006, the Tribunal put its concerns arising from the exchanges referred to in paragraphs 18 and 19 above, into a letter to the Applicant pursuant to s.424A of the Act in the following terms:

   “Dear [Applicant]

   INVITATION TO COMMENT ON INFORMATION

   The Tribunal has information that would, subject to any comments you make, be the reason, or part of the reason, for deciding that you are not entitled to a protection visa.

   The information is as follows:

   At the hearing of this matter on 25 May 2006 you gave the Tribunal evidence that you left Pakistan and were afraid to return there because you had been harmed by, and feared further harm from, Shia people. You stated that this is your major concern should you be returned to your country. You stated at the hearing that you were a Sunni leader. You also stated that you had been attacked on 12 to 13 occasions by Shias during 2005 and that you went into hiding from the beginning of 2005 until you came to Australia to avoid harm. As the Tribunal pointed out to you at the hearing these matters are omitted from both your application for review and your application for protection visa which you lodged 9 December 2005. You also stated at the hearing that there were false charges against you in your country arising from your role/what happened in the elections and that there were FIR police reports in relation to these false charges against you in existence in Pakistan which you became aware of 4 to 5 days after the elections which you agreed were held in Pakistan in September 2005. This is different from what is contained in your application for protection visa which states that members of your family have influence with the police and have threatened to put you in gaol “by putting some false cases through the police.

   This information is relevant because it may cause the Tribunal to find that you are not credible and that your claims have been invented by you to assist your application for protection.

   You are invited to comment on this information. Your comments are to be in writing and in English. They are to be received at the Tribunal by 9 June 2006.

   IF YOU DO NOT GIVE COMMENTS BY 9 JUNE 2006 THE TRIBUNAL MAY MAKE A DECISION ON THE REVIEW OF YOUR CASE WITHOUT FURTHER NOTICE.

   At the conclusion of the hearing on 25 May 2006 the Tribunal allowed you until 8 June 2006 to provide further documents/evidence in support of your claims. The Tribunal hereby extends that period until 9 June 2006.

   If you have any questions you can call me on the number below. You can also call our information line on 1300 361 969 (local call charges apply from anywhere within Australia, except when calling from mobile telephones). For assistance in your language, please contact the Translating and Interpreting Service (TIS) on 131 450. You can also obtain general information from our website at >

   The letter identifies the information that the Tribunal was of the view would form part of the reason for it affirming the decision under review. The letter identified the relevance of the information and invited the Applicant to comment upon it. In the circumstances, the letter complies with the obligation of s.424A(1) of the Act.

9. The Tribunal noted that the Applicant did not respond to the s.424A letter. The Tribunal concluded that, if the Applicant’s claims about a fear of harm from the Shi’as was genuine, if police raided his house and he was in hiding for a year before coming to Australia, he would not have made those claims for the first time at the Tribunal hearing. Rather, the Applicant would have made those claims before in support of his protection visa application. The Tribunal did not accept “as true or reasonable” his explanations as to why he now says that his fear of harm from the Shi’as was the major reason he left Pakistan, particularly, where he included in his protection visa application other claims for reasons as to why he should be entitled to protection.

10. The Tribunal identified the Applicant’s claims and his rejection of each of them. It is clear from the decision, that the concerns the Tribunal had about his claims were raised by the Tribunal at the hearing and in the s.424A(1) letter.

11. Ultimately the Tribunal found the Applicant not to be a witness of truth and rejected his claims. The Tribunal found that the Applicant “has given untruthful evidence to the Tribunal and it does not accept as true that there are charges against him in his country as he claims for the reasons that he claims.”

12. The Tribunal concluded that it found that it did not accept as true that the Applicant would be arrested if he returned to Pakistan for the reasons he claimed. The Tribunal found that there was no “plausible evidence” before it that the Applicant had suffered persecution in his country because of his religion, his political opinion, his imputed political opinion or for any other Convention reason.

13. The Tribunal found that there is not a real chance that the Applicant will suffer persecution for a Convention reason either now or in the reasonably foreseeable future if he were to return to Pakistan. For those reasons the Tribunal concluded that it was not satisfied on the evidence before it that the Applicant has a well founded fear of persecution in Pakistan within the meaning of the Convention.

14. Accordingly, the Tribunal affirmed the decision under review.

The proceeding before this Court

1. The Applicant was unrepresented before this Court, although had the assistance of an interpreter. The Applicant had participated in the panel advice scheme.

2. The Applicant did not have at Court copies of any of the documents filed by him in this Court, nor a copy of the green book of relevant documents, marked Exhibit 1R. Copies of the documents were made available to him in Court.

3. Each ground of the Applicant’s application for judicial review, filed on 19 July 2006, was read to him and he was invited to make whatever submissions he wished in support. The Applicant made no meaningful submissions in support of any grounds, save to say that he was still in danger if he were to return to Pakistan and that his family are still having problems and that the police would continue to follow him.

4. Ground 1 of the application is in the following terms:

   “1. The making of the decision of the Tribunal was an improper exercise of the power conferred by the Migration Act:

   (a) The Respondent failed to take into account the following relevant considerations into account in the exercise of power:

   The Tribunal has failed to the Applicant’s class and effective State protection. The Tribunal ought to have found that the Applicant was unable or unwilling to have the protection in Pakistan.”

   It is very difficult to understand what this ground is alleging. Plainly the making of the decision of the Tribunal was not an improper exercise of the power conferred by the Act.

5. Ground 1 would appear to do no more than cavil with the findings and conclusions of the Tribunal about his claims.

6. The Tribunal noted independent country information before it that disclosed that “sometimes authorities/police do not cannot always provide protection for those who are the subject of such conflict and violence in Pakistan.” However, the Tribunal rejected all the Applicant’s claims, including claims of past persecution and, therefore, did not accept that the Applicant would suffer persecution for a Convention reason either now or in the reasonably foreseeable future, if he were to return to Bangladesh. These findings and conclusions were open to the Tribunal on the material and evidence before it and for which it gave reasons.

7. Having made such unequivocal adverse findings in respect of the Applicant’s credibility and his claims, there was no obligation on the Tribunal to proceed to consider the question of effective state protection in respect of the Applicant (Minister for Immigration and Multicultural Affairs v Rajalingam (1999) FCR 220 at [67]).

8. Accordingly, ground 1 is not made out.

9. Ground 2 is in the following terms:

   “2. The Tribunal erred in law in arriving at the decision to affirm the respondent’s decision not to grant the applicant a protection visa as it has erred in its enquiries by applying and adopting a test other than that formulated in MIMA v Rajalingam (1999) FCR 220.

   Particulars

   The Tribunal at page 9 (para 5) of the decision errors in its findings of the test to adopt in looking at the evidence.”

   Again the ground as expressed discloses no error capable of review.

10. Ground 2 also appears to seek merits review which this Court cannot undertake (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; Abebe v Commonwealth of Australia (1999) 162 ALR 1 at [195]; NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [10]). The paragraph referred to by the Applicant in the particulars is the Tribunal’s conclusions about the rejection of the Applicant’s evidence. Those are findings that were open to the Tribunal on the evidence and material before it and for which it gave reasons. To the extent that the Tribunal made adverse credibility findings that is the role of and entirely a matter for the Tribunal par excellence Re: Minister for Immigration and Multicultural Affairs; ex; parte Durairajasingham (2000) 168 ALR 407 at [67]).

11. Accordingly, ground 2 is not made out.

12. Ground 3 is in the following terms:

    “3. The Tribunal was biased and did not appropriately address the applicant’s claims.

    Particulars

    The Tribunal generally adopted a predetermined approach in its enquiry and would appear to present an apprehension of bias. No bad faith is alleged.”

13. There are no particulars or evidence to support the Applicant’s allegation of bias or apprehended bias on the part of the Tribunal (Minister for Immigration and Multicultural and Indigenous Affairs v Jia [2001] HCA 17 at [69], [71]-[72] and [127]; SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 (“SCAA”)). A fair reading of the Tribunal’s decision does not in any way suggest that the Tribunal approached its task other, than with a mind open to persuasion (NADH v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328 at [14]-[15] and [20]).

14. The mere fact that the Tribunal has made adverse findings does not mean an inference of bias or prejudgment can be drawn (VFAB of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 102 at [21]; SCAA at [38]; WABC of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 286 at [3]).

15. Accordingly, this ground is rejected.

16. Ground 4 is in the following terms:

    “4. The Tribunal failed to consider the issue of relocation.

    Particulars

    The Tribunal was bound failed to consider the issue of relocation but has failed to address this.”

17. In circumstances where the Tribunal has so resoundingly rejected the Applicant’s claims on credibility grounds, there is no need for the Tribunal to proceed to consider the issue of whether or not it is reasonable for the Applicant to relocate (Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559).

18. In the circumstances, there was no jurisdictional error on the part of the Tribunal in failing to consider whether it was reasonable for the Applicant to relocate.

19. Accordingly, ground 4 is not made out.

20. Ground 5 is in the following terms:

    “The Tribunal failed to properly consider discrimination amounting to persecution in respect of Pakistan:

    Particulars

    The Applicant submits that the Tribunal failed to properly consider the serious harm / employment prospects that the Applicant likely to face if the Applicant is returned to Pakistan.”

1. Again, ground 5 does not disclose any error capable of review and would appear to do no more than seek merits review.

2. A fair reading of the Tribunal’s decision makes it clear that the Tribunal understood the Applicant’s claims, raised with the Applicant concerns it had about the Applicant’s claims, wrote to the Applicant in accordance with s.424A(1) of the Act about information that would form part of its reason for affirming the decision under review, otherwise made findings and conclusions, as it was obliged to do, and for which it provided reasons.

3. The Tribunal complied with its statutory obligations in the conduct of its review or in the reasons for its decision.

4. Accordingly, ground 5 is rejected.

Conclusion

1. The Tribunal’s decision is not affected by jurisdictional error and is a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.

2. The proceeding before this Court is dismissed with costs.

I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of Emmett FM

Associate:  S. Kwong 

Date:  15 February 2007