SZJHL v Minister for Immigration
[2007] FMCA 1025
•4 July 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJHL v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1025 |
| 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); 424A(3)(b); 474; pt.8 div.2 |
| Applicant: | SZJHL |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG2477 of 2006 |
| Judgment of: | Emmett FM |
| Hearing date: | 27 June 2007 |
| Date of last submission: | 27 June 2007 |
| Delivered at: | Sydney |
| Delivered on: | 4 July 2007 |
REPRESENTATION
| Applicant appearing on his own behalf |
| Counsel for the Respondent: | Mr J. Mitchell |
| Solicitors for the Respondent: | Ms E. Warner Knight, Australian Government Solicitor |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2477 of 2006
| SZJHL |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
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 July 2006 and handed down on 8 August 2006.
The Applicant was born on 16 June 1972 and claims to be from Pakistan, of Asian ethnicity, Muslim faith and homosexual orientation (“the Applicant”).
On 1 December 2005, the Applicant arrived in Australia, having legally departed from Islamabad International Airport on a passport issued in his own name and a temporary business visa issued on 25 November 2006.
On 6 January 2006, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”) under the Act.
In his protection visa application, the Applicant claimed that he feared persecution by “religious people” and his family and society in Pakistan.
On 13 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”).
On 12 April 2006, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal. On 19 July 2006, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 4 September 2006, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.
Legislative framework
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.
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.
Australia has protection obligations to a refugee on Australian territory.
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.”
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
On 28 April 2006, the Tribunal invited the Applicant to come to a hearing on 2 June 2006.
The Tribunal noted that it had before it the Department’s file, the Delegate’s decision record and other materials available to it from a range of sources as well as the application for review.
The Applicants claims made before the Tribunal and the Tribunal’s decision are accurately summarised in the written submissions prepared by counsel for the First Respondent as follows:
“3. Applicants’ claims
3.1 The Applicant claimed that he feared persecution because:
(a) he was homosexual;
(b)he had converted from being a Sunni Muslim to a Shia Muslim; and
(c)he was a member of the Jaffria Youth Pakistan (“JYP”).
3.2He claimed that he had been harassed, kidnapped and beaten in 2005.
3.3The Tribunal did not accept the Applicant’s claims. It gave the following reasons for rejecting his claims:
(a)There were inconsistencies between his oral testimony before the Tribunal and his response to the 424A Letter. Specifically:
(i) He claimed in his oral testimony that he had been assisted in preparing his application for protection visa and then stated in his response to the 424A Letter that he had prepared the application without assistance.
(ii) He claimed in his oral testimony that he had left his employment in November 2005 because he had a chest infection and then claimed in response to the 424A Letter that he had left because his fellow workers knew he was gay.
(b)There were inconsistencies between his application for protection visa and his oral testimony before the Tribunal. Specifically:
(i) He variously claimed that the date of his conversion to the Shia faith occurred on 9 March 2005 and 12 March. The claim to have converted on 9 March was inconsistent with the dates of other significant events in other material before the Tribunal.
(ii) He claimed that his parents had been beaten by members of a Sunni organization on 1 May 2006 and his mother was in a critical condition yet he claimed elsewhere that his mother had died on 6 March 2006.
(c)His claims that he had converted from being a Sunni Muslim to a Shia Muslim, that he was a member of the JYP and that he had been kidnapped were not referred to in his application for protection visa.
(d)He had been able to live in the same location in Taxila from 1991 to 2005, the Lashkar-e-Taiba had come to know he was gay in 1995 and his partner left Taxila only in 2003. This cast doubt on whether he had a well-founded fear of being persecuted if he returned to Pakistan.
(e)His evidence regarding his homosexuality was unimpressive.
3.4The Tribunal was not satisfied that he had a well-founded fear of persecution for a Convention reason and accordingly affirmed the decision under review.”
The proceeding before this Court
The Applicant was unrepresented before this Court although had the assistance of an interpreter. The Applicant confirmed that he relied upon the grounds identified in his application filed on 4 September 2006 as follows:
“1. THE TRIBUNAL FELL COMMITTED A JURISDICTIONAL ERROR BECAUSE OF ITS FAILURE TO COMPLY WITH S. 424A OF THE ACT.
2. THE TRIBUNAL ALSO MADE A JURISDICTIONAL ERROR WHEN IT TRAVELLED IN THE INFORMATION WHICH WAS GIVEN US 36 OF THE MIGRATION ACT 1958 NOT FOR THE PURPOSE OF S414 OF THE MIG ACT 1958
3. I REFER CASE SAAP V MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS.”
Each of the grounds was interpreted for the Applicant and he was invited to make submissions in respect of each ground and in respect of his application generally. The Applicant had no meaningful submission to make in respect of his application for judicial review of the Tribunal’s decision.
Ground 1 – alleged failure to comply with s.424A of the Act
The applicant was unable to identify what was the information he alleged the Tribunal was required to give him for comment pursuant to s.424A(1) of the Act.
The Applicant attended a hearing before the Tribunal on 2 June 2006 at which he claimed for the first time that he had converted to the Shia faith and became a member of the JYP, resulting in his kidnapping. In support of those claims, the Applicant gave to the Tribunal: newspaper articles, which he said mentioned that he had been kidnapped; a police report which the Applicant claimed to have lodged with the police in relation to the kidnapping; a card and letter from the JYP supporting his claim to have converted from the Sunni faith to the Shia faith on 12 March 2005 in Pakistan; and, a letter purportedly from a lawyer stating that the Applicant had been forced to leave Pakistan due to religious sectarianism and a newspaper article which the Applicant said referred to the fact that he was in Australia.
Following the hearing, as a result of these further claims and the material given by the Applicant to the Tribunal in support of the further claims, the Tribunal wrote to the Applicant on 9 June 2006 pursuant to s.424A(1) of the Act in which the Tribunal stated, inter alia, the following:
“As the Member reviewing your case put to you in the course of the hearing, the fact that there was no mention of your claimed conversion to the Shia faith, your membership of the JYP or your claimed kidnapping in your original application or in the statement accompanying your original application may lead the Member to conclude that you have fabricated these claims on the basis of the documents which you have received from Pakistan. The Member may conclude that there is no truth in your claims that you converted from the Sunni faith to the Shia faith, that you were a member of an organisation called the JYP or that you were kidnapped by the Lashkar-e-Taiba in 2005 because you were a member of the JYP. The Member may conclude that the documents you have produced in support of these claims are likewise fabrications.”
The Applicant was then invited to comment on the information by 5 July 2006.
On 5 July 2006, the Tribunal received a written response from the Applicant.
The Tribunal found that the Applicant’s response to its s.424A letter compounded the problems with the Applicant’s credibility. The Tribunal then identified the inconsistencies causing it concern that arose from the claims made by the Applicant in his protection visa application and the oral evidence given by the Applicant at the hearing and the Applicant’s written response to the Tribunal’s s.424A(1) letter.
Having considered the evidence of the Applicant before it, the Tribunal found that the Applicant had fabricated his claims with regard to his conversion to the Shia faith, his membership of the JYP and his claim of being kidnapped. The Tribunal found that “given that there was no mention of these claims in his original application and given the problems with the dates of events outlined in the preceding paragraph I do not accept that there is any truth in the Applicant’s claims in this regard nor I do I accept that the documents which he has produced are genuine.”
In its decision, the Tribunal recounted the making of the further claims at the hearing and the production of these various documents by the Applicant at the hearing. The Tribunal also identified in its decision matters of concern to it that it explored with the Applicant at the hearing and noted the Applicant’s responses.
The Tribunal found that the documents provided by the Applicant at the hearing were not genuine.
The Tribunal did not accept that the Applicant was a homosexual or that he was ever threatened for reasons of his homosexuality. The Tribunal rejected the Applicant’s claim of having been kidnapped by the Lashkar-e-Taiba for reasons of his homosexuality or being threatened with being killed by reason of his homosexuality. The Tribunal then stated that because it did not accept the premise upon which the Applicant’s claims were based, it did not accept that the Applicant had a well-founded fear of being persecuted for reasons of his membership of a particular social group of homosexuals in Pakistan if he were to return to Pakistan, now or in the reasonably foreseeable future.
A fair reading of the Tribunal’s decision makes it clear that the information which the Tribunal considered was part of the reason for affirming the decision under review was information either given by the Applicant to the Tribunal, and therefore excluded from the obligations of s.424A(1) of the Act by reason of s.424A(3)(b) of the Act, or, was information that had been given by the Tribunal to the Applicant for comment by the Applicant in accordance with s.424A(1) of the Act.
In the circumstances, the Tribunal complied with its obligations under s.424A of the Act.
Accordingly, ground 1 is rejected.
Grounds 2 and 3
It is not clear to me what the Applicant is intending by ground 2. I asked the Applicant to explain what he meant by that ground, however, he replied that he did not know.
Grounds 2 and 3 do not disclose any ground capable of review by this Court.
Accordingly grounds 2 and 3 are rejected.
A fair reading of the Tribunal’s decision makes it clear that the Tribunal understood the claims being made by the Applicant. The Tribunal considered the evidence of the Applicant, made findings of fact and reached conclusions based on those findings that were open to it on the material before it and for which it provided reasons. There is no other error alleged by the Applicant and none is apparent on the face of the Tribunal’s record. The Tribunal complied with its statutory obligations in the making of its decision, including the conduct of its review.
Conclusion
The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
The proceeding before this Court, commenced by way of application filed on 4 September 2006, is dismissed with costs.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Emmett FM
Associate: S. Kwong
Date: 4 July 2007
0
0
2