SZJGL v Minister for Immigration - [2007] FMCA 1995

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJGL v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 1995

MIGRATION – Review of decision of Refugee Review Tribunal – impermissible merits review – adverse credibility finding – Tribunal considered applicant’s claims – Tribunal did not misdirect itself – no obligation to consider question of effective state protection in the circumstances of this case – no jurisdictional error – application dismissed.

Migration Act 1958, s.424A

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; (2006) 231 ALR 592; [2006] HCA 63
Re Minister for Immigration and Multicultural Affairs; Ex Parte Durairajasingham (2000) 168 ALR 407

Applicant:

SZJGL

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2367 of 2006

Judgment of:

Nicholls FM

Hearing date:

29 November 2007

Date of Last Submission:

29 November 2007

Delivered at:

Sydney

Delivered on:

29 November 2007

REPRESENTATION

Counsel for the Applicant:

Nil

Solicitors for the Applicant:

Nil

Counsel for the Respondents:

Mr S Free

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The reference to the first respondent be amended to read “Minister for Immigration and Citizenship”.
The application made on 25 August 2006 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2367 of 2006

SZJGL

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore; Revised from Transcript)

I have before me today an application made under the Migration Act1958 (Cth) (“the Act”) on 25 August 2006 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”), signed on 9 July 2006, and handed down on 1 August 2006, which affirmed the decision of a delegate of the respondent Minister to refuse a protection visa to the applicant.

Background

The first respondent has filed a bundle of relevant documents in this matter (the “Court Book” (“CB”)) from which the following can be discerned. The applicant is a citizen of Pakistan who arrived in Australia in November 2005 and applied for a protection visa in December 2005. Relevantly, this application is reproduced at CB 5 to CB 30, and I note at CB 3 and CB 4 a statement submitted by the applicant with his application. When this application was refused the applicant applied for review to the Tribunal. This application is reproduced at CB 61 to CB 64 and was made on 31 March 2006.

I note that the applicant had the assistance of a migration agent whom he also appointed as the authorised recipient for the purposes of receiving correspondence. I note in particular CB 62 in that regard.

Applicant’s claims to protection

The applicant’s claims to protection were initially contained in a statement accompanying his application for a protection visa (CB 3 to CB 4). The applicant appeared before the Tribunal on 19 May 2006 to give evidence. The Tribunal’s account of what occurred at the hearing is set out in its decision record (reproduced at CB 127 to CB 132).

I note that by letter dated 22 May 2006, the Tribunal wrote to the applicant inviting him to comment on certain information. The Tribunal referred to this as the “s.424A letter”.
The applicant’s claims were that he was a member of the Muslim League (N) Group in his home area in Pakistan. He claimed that he and his brother were supporters of Mian Nawaz Sharif, a former Prime Minister of Pakistan and the head of the Pakistan Muslim League (N). Following the loss of power by Mian Nawaz Sharif, the applicant claimed that as a supporter he became “the prime target of our opposition”, and that following protests with other Muslim League members he was arrested and charged with possession of illegal weapons and assault. He claims to have been detained for 15 days when he was released on bail, but that the matter remained under investigation. He also variously claimed that his brother had suffered harm and that there were threats to his family. He fears harm that if he were to return to Pakistan he would be arrested and persecuted because of his affiliation with the Pakistan Muslim League (N) Group (“PML (N)”).

The Tribunal

The Tribunal affirmed the delegate’s decision not to grant the applicant a protection visa. Any plain reading of the Tribunal’s decision record reveals that it found that the applicant was not a credible witness and that the Tribunal did not accept that the applicant was telling the truth about his own or his brother’s involvement with the PML (N).
In its analysis of the applicant’s claims and the applicant’s evidence, the Tribunal gave clear reasons for the adverse view that it took of those claims and evidence. I note that from the Tribunal’s account of what occurred at the hearing, which remains before this Court unchallenged by any evidence brought by the applicant, that the specific reasons for forming this view were put to the applicant at the hearing that it conducted with him, and also formed the subject of the letter that the Tribunal subsequently sent to him for comment.

Application to the Court

The applicant puts forward four stated grounds before the Court, some with particulars:
“1.The applicant is a citizen of Pakistan. If the applicant is deported from Australia he will be at risk of suffering persecution within the meaning of the 1951 Convention relating to the Status of Refugees and the 1967 Protocol relating to the Status of Refugees.
2.The Tribunal erred in law in arriving at the decision to affirm the respondent’s decision not to grant a protection visa as it has misdirected its enquiries has to profile of the Applicant instead of directing its enquiries as to whether the applicant held political opinion.
Particulars
The Tribunal looked at specific non-relevant situation failed to consider the thrust of the Applicant’s claim.
3.The Tribunal’s decision involved jurisdictional error affecting the decision which is subject to the supplication in that:
(a)it asked itself wrong question and applied the wrong test

Particulars
The Applicants repeat the particulars in the preceding paragraph.
The Applicants submit that putting the above questions to the applicants to the ascertain if the applicant are wanted is misdirecting the enquiry in that the question requires applicant to address the mind of the authorities; and such a serious issue has not been properly addressed.
The section 424A letter misdirected enquiries in relation to the Applicant’s claims.

4.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 the power:
The Tribunal has failed to the effective State protection.” (Errors in Original)

Hearing before the Court

At the hearing before the Court today the applicant appeared in person. He was unrepresented and was assisted by an interpreter in the Punjabi language. Mr S Free of Counsel appeared for the first respondent and Mr Free has also provided written submissions on behalf of the first respondent.
At the hearing, the applicant stated that at the hearing before the Tribunal he had been emotionally upset and that he had been asked several questions but that he did not know what it was that he had answered. He stated that when the Tribunal hearing had finished he had told the Tribunal that he had been emotionally upset and did not know what he had answered but the Tribunal nonetheless still decided against him. I will return to this matter in due course.

Consideration

Taking each of the stated grounds in the application, and noting also assistance provided to the Court by Mr Free by way of written submissions, ground one in the application merely asserts that the applicant is a person to whom Australia owes protection obligations. It does not, on its face, appear to assert jurisdictional error in itself on the part of the Tribunal. To the extent that it may be seen as a complaint about the Tribunal’s ultimate finding, and taking what is stated in ground one on its face and in the absence of any particulars, I cannot see that this, at best, rises above a request for this Court to engage in impermissible merits review (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259).
Ground two in the application appears to be a complaint that the Tribunal either misunderstood, or failed to consider, the applicant’s claim to protection, that is, to properly consider the applicant’s claim to protection, which he says arises out of the issue of his having held a political opinion. The applicant says that the Tribunal considered what is described as “specific non-relevant situation”.
It is trite to say that the Tribunal’s relevant obligation is to consider all aspects of an applicant’s claims and indeed, circumstances that may be said to arise from those claims. As I understand the complaint in ground two it is that the Tribunal did not consider whether or not the applicant held a political opinion but instead looked at this “specific non-relevant situation”.
On the material that is before the Court now, this complaint is not made out.
The applicant’s claims to protection are plainly set out in his statement attached to his protection visa application and from what he reportedly told the Tribunal at the hearing. From its setting out of the applicant’s claims and evidence, I cannot see that the Tribunal misunderstood the applicant’s claims which relevantly were that he was a member of the particular political party active in his local area in Pakistan and that following the loss of government nationally by his party, he came into conflict with opposition groups and parties and was, along with his brother, subjected to harm, and that he himself was charged with possession of illegal weapons and harassed and assaulted, and that even after he was released on bail after 15 days he continued to be harassed by the police. He left Pakistan so as to avoid persecution and he feared arrest and persecution if he were to return because of his political affiliation.
Any plain reading of the material before the Court, in my view, reveals that it was to this factual basis of the applicant’s claims that the Tribunal directed its attention during the course of the hearing that it conducted with the applicant.
What arises from the Tribunal’s account is that it gave the applicant the opportunity to expand and explain aspects of his claims and importantly, particularly bearing in mind what the High Court has said in the matter of SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; (2006) 231 ALR 592; [2006] HCA 63) about the Tribunal’s procedural fairness obligations as they are said to arise during the course of a hearing, the Tribunal plainly put its concerns about his evidence to him at the hearing and also in its subsequent letter.
As Mr Free correctly submits, the Tribunal did not reject the applicant’s claims because it found that he did not have a sufficient political profile, or in that sense, the matters relating to the holding of a political opinion. The Tribunal rejected the applicant’s claims on credibility grounds.
It was for reasons of the adverse view that it took of the truthfulness of the applicant’s claims and evidence that it did not accept the factual basis that the applicant put forward as being his claims that he or his brother had ever been members of the PML (N) Group, or that he had been involved with this group. Nor did the Tribunal accept that he or his brother had ever held any elective office in Pakistan or that the applicant’s brother, as had been claimed, was a close associate of a particular senior politician.
Also the Tribunal did not accept that the applicant, and for that matter his brother, had been arrested, charged with offences or jailed as a result of their claimed involvement with the PML (N) or as a result of their involvement in protests. Nor did it accept that he or any member of the family had been harassed, threatened, attacked, tortured or otherwise persecuted.
As Mr Free submits, the Tribunal’s consideration of the applicant’s claims, and its adverse view of the applicant’s credibility, did involve, amongst other things, consideration of not only the factual basis of the applicant’s alleged claim and consideration of the claim that he had been a member of the PML (N), but also consideration of the applicant’s claims about particular political offices to which he claimed he and his brother had been appointed and had held.
In my view, in the circumstances of the applicant’s claims, the holding of a political opinion as described by the applicant before the Court, and on what is before the Court, can only be seen in the context that it arose out of his claim to membership of the PML (N). In this regard I note in particular that in rejecting the applicant’s claims to have been a member of the PML (N) and all the attendant claims that flowed from that the Tribunal ultimately found, as set out at CB136.7:
“I do not accept that the Applicant was ever persecuted in Pakistan for reasons of his real or imputed political opinion (in support of the PML (N) or in opposition to the present Government of Pakistan) or his membership of the particular social group constituted by his family (on the basis of his association with his brother, [who is there named]).”
On what is before the Court, I cannot see that the Tribunal failed to understand, or that it ignored, any aspect of the applicant’s claims as put by the applicant. It dealt with the claims as presented; it rejected these claims given the adverse view that it formed of the applicant’s credibility and for which adverse view it gave reasons. It addressed the issue of whether the applicant had ever been persecuted in Pakistan for reasons of a real or imputed political opinion.
What the applicant appears to describe in the application before the Court as a “specific non-relevant situation” can only, given what I have just said, be plainly the factual situation which the applicant himself put in support of his protection visa application to the Tribunal and is clearly highly specific and relevant to his claims.
I cannot see the Tribunal failed to consider the applicant’s claims or any aspect of the applicant’s claims or any circumstances that could be said to arise from any such claims. To the extent that the applicant also complains about what is described as the Tribunal’s enquiries having been directed to this “specific non-relevant situation”, both presumably at the hearing and by way of its subsequent letter inviting comment, is in all the circumstances, and given what I have already said, plainly not made out.
The Tribunal’s enquiries were both relevant to the applicant’s claims and, as I have said, they specifically arose out of the different aspects of the applicant’s claims and were, in my view, indeed comprehensive. Nor can I see jurisdictional error in the Tribunal’s finding about the applicant’s credibility.
As Mr Free again correctly submits, a finding of credibility is of course a finding of fact, which is the primary function of the “decision-maker par excellence” (Re Minister for Immigration and Multicultural Affairs; Ex Parte Durairajasingham (2000) 168 ALR 407 at [67], per McHugh J). I cannot see that in coming to its conclusion, the Tribunal made any error as it arises from the application of any relevant procedure, or failed to understand or not properly apply the relevant principles. This ground is not made out.
Ground three is similarly not made. Again, I can only agree with Mr Free’s submission in this regard that it fails, given that it is a reworking of the same argument underlying ground two, for the same reasons. I cannot see that the Tribunal asked itself the wrong question and applied the wrong test in that it did not fail to consider the applicant’s claims. Nor did it apply the wrong test in looking at the “specific non-relevant situation” for all the reasons as set out above. Nor can I see that the Tribunal’s questioning at the hearing and its invitation to comment by way of subsequent letter was some sort of misdirection of the enquiry away from the applicant’s claims. The Tribunal’s questioning at the hearing and its subsequent letter was squarely directed to the claims raised by the applicant and the Tribunal’s concerns as to the credibility of the applicant and his claims. This ground also does not succeed.
It would appear that ground four is a complaint that the Tribunal failed to consider whether there was effective state protection for him in Pakistan. In the circumstances of this case I cannot see that the Tribunal was obliged to consider this issue.
The Tribunal had comprehensively rejected the applicant’s claims that he had ever been persecuted in Pakistan and found that it was not satisfied that he had a well-founded fear of being persecuted for any Convention reason if he were to return to Pakistan. The basis for the Tribunal’s decision was what can only be described as the comprehensive rejection of the applicant’s claims on credibility grounds. In these circumstances, no obligation and no issue of effective state protection arises for consideration. Such an obligation would only arise if the Tribunal were to have made a finding that there had been a well-founded fear of harm, and whether in these circumstances nonetheless the applicant could access effective state protection. But plainly in the circumstances of this case it simply never got to that point. This ground also does not succeed.

Matters raised at the hearing before the Court

Before the Court today, as noted above, the applicant claimed that he had been emotionally upset before the Tribunal and that although he had been asked several questions, he did not know what he answered and that while he had told the Tribunal towards the completion of the hearing that he was emotionally upset, that notwithstanding that the Tribunal still decided against him.
I note from the Tribunal’s account of what occurred at the hearing, and in particular as set out at CB 132.7 (I should just note that this was after the Tribunal during the course of the hearing had repeatedly put its concerns to the applicant about the difficulties that it had with his evidence), that the Tribunal put to the applicant that what he was saying at the hearing was completely different from what he had said in his original application in respect to a number of details relating to his activities (CB 128.6).
In relation to the applicant’s core claim about membership of the PML (N), at CB 131.1 the Tribunal said it noted that the applicant did not appear to know anything about the party, and put to him a number of matters. The Tribunal obviously gave the applicant the opportunity to respond. Then the Tribunal states (at CB 132.6):
“I asked the Applicant if he understood that it was a little difficult for me to accept that he had had the problems he claimed to have had. The Applicant said that he was still waiting for some documents from Pakistan but the circumstances in his case were worse at present.
I put to the Applicant that I had difficulty accepting that he had been a member of the PML(N) at all. The Applicant said that he had been at the lower level. I foreshadowed that I would be writing to him in accordance with section 424A of the Act about the inconsistencies in his evidence. I asked him if there was anything further he wished to add before I closed the hearing. The Applicant repeated that he was upset at present because he had been unemployed for six months and he had hardly any income. He said that he had been in Australia for almost six months. He said that he had not been able to sleep well the night before the hearing because he had not known what sort of questions he would be asked. He said that he had had a lot of problems and difficulties in Pakistan and if he were to return there he would still face difficulties and problems.”

What is plain is that the Tribunal did have before it, and did note, the applicant’s claim that he was upset, albeit and importantly put at the end of the hearing but nonetheless put. I agree with submissions made today by Mr Free that even at its highest, even if the applicant had been upset throughout the course of the hearing, this does not demonstrate on its own and as put, jurisdictional error on the part of the Tribunal.
Again I note, as Mr Free submitted, that the applicant had been invited to a hearing pursuant to s.425 of the Act. He attended the hearing. He was given the opportunity to give his evidence and his explanation, and even if it is accepted that the applicant was upset, this does not demonstrate either in itself or indeed in any consequential way, that the hearing failed in the sense that the Tribunal failed to provide the applicant with the opportunity of a fair hearing. Nor is it demonstrated that even if he were upset that this prevented the applicant from giving the evidence and giving the explanations that he is reported to have given.
Having met its obligation in terms of the invitation, the complaint that the applicant puts now that he had told the Tribunal that he was upset, does not reveal any failure on the part of the Tribunal in providing a fair hearing, or a fair opportunity, for the applicant to be heard. Nor does it otherwise demonstrate jurisdictional error on the part of the Tribunal.
In all, therefore, the applicant’s grounds do not reveal jurisdictional error. The applicant’s complaint made to the Court today also does not reveal jurisdictional error, nor can I concern jurisdictional error otherwise in this Tribunal’s decision. Simply, despite opportunity, the applicant is unconvincing as to his claims before the Tribunal. The Tribunal did not believe him for the reasons that it gave and it made findings which were plainly open to it on what was before it, and in these circumstances no jurisdictional error is revealed. For this reason this application is dismissed.
I am going to make an order as to costs. As to the amount sought, I note it is consistent with what is set out in the relevant schedule to the Rules of this Court, and while I take the view that I am not bound by what is set out in that schedule, nonetheless it is a good guideline as to what may be a reasonable amount. In any event, I am satisfied that the amount sought is reasonable given the work that has been done by the Minister’s legal representatives in responding to the application, noting attendances by a solicitor on two occasions, preparation of multiple copies of the Court Book, the briefing of Counsel and attendance by Counsel at the hearing and preparation of written submissions, all of these being relevant to the issue of reasonableness. I am satisfied that the amount sought is reasonable.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate: A Douglas-Baker

Date: 10 December 2007