SZJTY v Minister for Immigration
[2007] FMCA 413
•16 March 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJTY v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 413 |
| MIGRATION – Rule to show cause – alleged persecution for formation of a trade union in Pakistan. |
| Migration Act 1958 (Cth), Div 4 Pt 7, s.424A |
| SZIGQ v Minister for Immigration and Citizenship [2007] FCA 328 |
| Applicant: | SZJTY |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 3542 of 2006 |
| Judgment of: | Turner FM |
| Hearing date: | 16 March 2007 |
| Date of last submission: | 16 March 2007 |
| Delivered at: | Sydney |
| Delivered on: | 16 March 2007 |
REPRESENTATION
| The applicant appeared in person |
| Solicitor for the Respondents: | Ms Melissa Jolley of Sparke Helmore |
ORDERS
The application and amended application are dismissed.
The applicant is to pay the costs of the first respondent fixed in the amount of $2,800.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3542 of 2006
| SZJTY |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application filed on 30 November 2006 seeking an order that the respondents show cause why a remedy should not be granted in respect of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 13 October 2006, which affirmed the decision of the delegate for the Minister for Immigration and Multicultural Affairs not to grant the applicant a protection visa. The applicant filed an amended application on 20 February 2007.
The applicant was born on 9 February 1974 and claims to be from Pakistan and of Punjabi ethnicity and Islamic faith (“the Applicant”).
The applicant arrived in Australia on 1 February 2006 on a visa which had been issued in Islamabad on 25 November 2005.
The applicant lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs on 15 March 2006. In this application he claimed a fear of persecution based on his political activities and involvement in establishing a worker’s union in 1997. The applicant states that he was threatened, harassed, and beaten by members of a rival workers group which was endorsed by the employer company. After the applicant applied to the National Industrial Relations Commission to have his union declared as a collective bargaining agent, he was arrested by military police, detained, and interrogated for a week. The applicant was told that if he did not withdraw his application to the Commission he would be tried under the Official Secrets Act. The applicant claimed he could not get state protection because there is Army Rule in Pakistan and that his employer was under the control of the Ministry of Defence (Court Book “CB” 19-22).
This application was refused by a delegate of the first respondent on 5 June 2006.
On 6 July 2006 the applicant filed an application for review of the decision of the Minister’s delegate with the Refugee Review Tribunal. In a letter dated 7 August 2006, the Tribunal advised the applicant that it was unable to make a favourable decision without additional information (CB 51-52). The applicant was invited to give oral evidence and present arguments before the Tribunal at a hearing scheduled for 13 September 2006. The applicant responded to the letter by notice dated 27 August 2006, advising the Tribunal that he did not wish to attend the hearing. The passage following where he ticked that he did not wish to come to the hearing reads as follows:
I/we consent to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable me/us to appear before it.
From that point on “the inevitable consequence was the rejection of the application”: SZIGQ v Minister for Immigration and Citizenship [2007] FCA 328 per Downes J at para.4. The Tribunal therefore determined the issue on the evidence available to the Tribunal. The applicant decided not to put further material to the Tribunal.
On 13 October 2006 the Tribunal affirmed the decision of the Minister’s delegate refusing to grant the applicant a protection visa (CB 63). In considering the applicant’s claims, the Tribunal stated that:
…the applicant’s claims are mere assertions which the Tribunal has not had the opportunity to test at a hearing. Given the lack of detail in the applicant’s claims, and without the opportunity to test the truthfulness of his claims at hearing, the Tribunal is not prepared to simply accept them. (CB 70.2)
The applicant then filed the application in this court, seeking judicial review of the Tribunal’s decision pursuant to the Migration Act 1958 (Cth) and filed an amended application on 20 February 2002.
The original application seeks an order that the respondents show cause why a remedy should not be granted as sought in the application. The amended application seeks judicial review without a show cause hearing.
In a show cause matter, by rule 44.12 of the Federal Magistrates Court Rules, if the applicant shows an arguable case, the Court may either adjourn the proceedings and order the respondents to show cause at a final hearing why an order for the relief claimed should not be made, or make final orders in relation to the claims for relief and grounds in the application, without adjourning to a final hearing. If the Court is not satisfied that the applicant has raised an arguable case, the Court may dismiss the application: rule 44.12(1)(a).
The respondents ask that the application be dismissed, alleging that the application does not raise an arguable case for the relief claimed. That application is made in the response filed by the respondents on 21 December 2006.
The application
In his application, the applicant set out three grounds as follows:
1)That the applicant was persecuted by reason of being a leader of trade union.
2)The applicant has undergone the threats of his life.
3)The amount of persecution, threat to life being a member of trade union were not kept in view. There is a jurisdictional (sic) and breach of natural justice. As the brother of the applicant was shot dead.
In his amended application filed on 20 February 2007, the applicant set out the following grounds and particulars:
That the applicant was an active member of the trade union in heavy mechanical complex Taxila near Rawalpindi city Pakistan. The applicant was employed with the same organization the day the applicant joined the heavy mechanical complex. This organization is working under the minister of industries/defense Government of Pakistan. The applicant joined the welfare organization, since there is no permission in the government owned companies to form the labor unions, The applicant gathered some of his colleagues to form a trade union, the applicant with the help of his other friends took the expert advice to form the union, these friends and the colleagues were interested to form the trade union.
1)That the government of Pakistan is deadly against the formations of the trade unions in their organization. The applicant was called by the General Manager of the Heavy Mechanical Complex and was threatened that he shall be treated, ans (sic) shall be prosecuted if he further involves in the trade union activities. The applicant was told by the authorities that if the applicant wants to pass his life in jail in case if the applicant wants to remain in the trade union activities. The applicant gave up the activities for some times so as to not to be charged by the police. The applicant waited for some times i.e. suitable time so that the applicants trade union be declared as barging (sic) agents from the National Industrial Relation Commission.
2)That the NIRC declared the trade union is one of the collective bargaining agents, the NIRC informed the Heavy Mechanical Complex that the union has been recognized by the NIRC. The applicants matter was handed over to the Military Intelligence, as this department was under the control of the ministry of defense, totally controlled by the Army. The applicant was interrogated by the officials of the Military Intelligence, there the applicant was put to many inquiries, investigations and other investigation procedures. The applicant told the officials that he is not the enemy Agent or he has nothing to do with other anti national forces.
3)That the applicant was told by the authorities that if the applicant does not withdraw his application from the NIRC, than the applicant shall be dealt under the provisions of the official secret act which calls for life imprisonment. The applicant was released after a great deal of difficulties, in the meanwhile the welfare union which is the pocket welfare union became against the applicant. The group of the welfare union called the applicant, the welfare union was fully backed by the administration told the applicant that we have already made the welfare union, than why have you made the trade union, the applicant told them that the trade union is in the interest of the workers, the welfare union bashed the applicant, mistreated the applicant.
4)That the welfare union people gave the applicant three days times to think over and withdraw the application from NIRC and join them back. The applicant went to the police, the police did not took (sic) any action in the matter with the result that the applicant was not given any protection by the authorities, the applicant even tried to contact the high officials to intervene in the matter, but they also expressed their inability to give the protection to the applicant. It is to be mentioned here that the welfare union was not ready to give the time to the applicant.
5)That on the next day the applicant was again caught by the members of the welfare union, this times the applicant had undergone lot of mistreatment, the applicant was bashed, the applicant was told that the applicant shall have to face the dire consequence of his being with the trade union. The applicant had to undergo lot of persecution, harassments the life of the applicant was in danger as the applicant was unable to coup (sic) with the situation. The other members of the trade union were made to come back to the welfare union, the applicant was left alone, the applicant can not fight with the government organization. The applicant was continuously chased by the secret agencies, the applicant has under gone threats of his life being taken away as they had the full backing of the authorities. The State protection was not available to the applicant. The applicant lodged the application for the protection.
6)The Refugee Review Tribunal gave the verdict that the case of the applicant does not fall 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 trade union, and is a person of importance as far as the acts of violence against the applicant are concerned. The applicant 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 relation 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.
The applicant today wished to put further material to the Court as to factual matters which were not before the Tribunal. The Court refused to accept that additional material.
Having considered the material in the applicant’s application and affidavit, in the Green Book, in the first respondent’s outline of submissions, and having heard the submissions by the parties, the Court makes the following findings in relation to the grounds in the application.
There is clear authority that an applicant in a migration matter must establish his case to the satisfaction of the Tribunal. The applicant stated to the Court that he answered all questions put to him by the Tribunal. As the applicant did not appear before the Tribunal, the Court takes that to be a reference to proceedings before the delegate of the Minister. The Court finds no arguable breach of natural justice, specifically, no arguable breach of the provisions of Div 4 Part 7 of the Migration Act. Those provisions are an exhaustive statement of the natural justice hearing rule applicable to the proceedings. All claims put by the applicant were clearly taken into account by the Tribunal.
Ground 1 of the application asserts that the applicant was persecuted by reason of being a leader of a trade union. The Tribunal did not accept that evidence. That is a finding of fact by the Tribunal which is not open to review by this Court.
Ground 2 also makes an assertion of fact and provides no basis for judicial review.
Ground 3 also raises matters of fact which do not raise a basis for judicial review. The Court has already found that there was no breach of the natural justice requirements and finds no breach of s.424A of the Act.
The Court is not satisfied that the application has raised an arguable case and dismisses the application pursuant to rule 44.12(1)(a).
The grounds in the amended application take the form of evidence followed by an assertion after paragraph 6 which the Court takes to refer to all the claims above it:
The Tribunal did not make findings in relation to these claims. Specifically, whether the events might occur again and whether the applicant has a well-founded fear of persecution on this basis. In these circumstances the Tribunal involved jurisdictional error.
The Court finds that those contentions are incorrect. The Tribunal found at CB 70.5:
The Tribunal is not satisfied, on the information before it, that the applicant was a leader, organiser, or member of a trade union in Pakistan. It follows that the Tribunal is not satisfied that the applicant was threatened by the general manager of the company, that if he took part in union activities he would be handed over to the police, or tried under the Official Secrets Act. It follows that the Tribunal is not satisfied that the applicant was threatened, mistreated and bashed by members of the rival union, that his family was harassed by the rival union, or that his brother was killed for reasons of his union leadership and membership. The Tribunal is not satisfied that the applicant was arrested by military intelligence, detained and interrogated for one week in 1999, or that he cannot get state protection. Therefore, the Tribunal is not satisfied that the applicant would face persecution if he returned to Pakistan for reasons of his claimed union activities and membership.
That is clearly a finding as to whether the alleged events might occur again.
The Tribunal found at CB 70.8:
The Tribunal is not satisfied that the applicant has a well-founded fear of persecution for reasons of his race, religion, nationality, political opinion or membership of a particular social group. Overall, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for a Convention reason if he returns to Pakistan.
The contention that the Tribunal made no finding as to whether the applicant had a well-founded fear of persecution on that basis is therefore clearly incorrect.
The Court finds that no error of law has been shown to have occurred in relation to those or any other aspects of the matter. Section 424A was not breached.
The application and amended application are dismissed.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Turner FM
Associate: Sarah James
Date: 26 March 2007
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