SZJVT v Minister for Immigration
[2007] FMCA 772
•22 May 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJVT v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 772 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision –visa – protection visa – refusal – no error in refusing request to adjourn Tribunal hearing. |
| Migration Act 1958, ss.91X, 424A, 425, 426A |
| Applicant: | SZJVT |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3696 of 2006 |
| Judgment of: | Cameron FM |
| Hearing date: | 22 May 2007 |
| Date of Last Submission: | 22 May 2007 |
| Delivered at: | Sydney |
| Delivered on: | 22 May 2007 |
REPRESENTATION
The applicant appeared in person.
| Counsel for the Respondents: | Mr. J. A. C. Potts |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application be dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3696 of 2006
| SZJVT |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By application dated 11 December 2006, the applicant seeks review of the decision of the Refugee Review Tribunal (“Tribunal”) which was signed on 21 November 2006 and which affirmed an earlier decision of the delegate of the Minister for Immigration & Multicultural Affairs (“Minister”) dated 14 July 2006 refusing the applicant’s application for a protection visa.
Section 91X Migration Act 1958 (Cth) (“Act”) provides that the Court must not publish the applicant’s name.
Background facts
The Tribunal described the applicant in the following terms:
The Applicant is aged in his mid-thirties. According to the details in his original application he completed ten years of education in Sialkot in 1986 and he was employed as a clerk in a cement factory in Rawalpindi from 1987 until December 2004. He visited Indonesia between December 2004 and April 2005 and again between September 2005 and November 2005. (Court Book (“CB”) page 70).
The applicant claims to fear persecution in Pakistan because of his claimed marriage to a Christian woman.
The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4-7 of the Tribunal’s decision (CB 70-73). Relevantly, they are in summary:
a)in August 1993 the applicant (who identified his religion as Islam) married a Christian girl very discreetly and had to move from Sialkot to another city as a result. He said his parents and other close relatives had been against the marriage;
b)the Christian community chased him everywhere and had alleged to the police that he had kidnapped his wife. He said that he had been arrested, but the Christian community had been dissatisfied with the investigation and the matter had to be investigated by the Federal Investigation Agency as well;
c)the applicant said that although the Christian community had been satisfied with this investigation his wife’s relatives started to harass him and committed acts of violence against him;
d)the applicant and his wife moved from one place to another. The applicant had been told that his wife’s parents had hired people to kill him. He reported this to the police but the police were unable to help him. The applicant said that his wife’s father was a senior police officer and had taken advantage of his position to inform the police everywhere in Pakistan to look for him and his wife and also to hire criminals to kill him. The applicant said that his wife’s brothers were known gangsters who had been involved in many murder cases;
e)the applicant had gone to Indonesia between December 2004 and April 2005 and again between September 2005 and November 2005 because he did not feel safe in Pakistan. He said that “at any time the killers could reach the applicant and murder the whole family, the applicant has three children born out of the wedlock of the parties” (CB 71). The applicant said that he had left his family with one of his close friends whilst he was out of Pakistan and after his return to Pakistan the situation had been the same;
f)the applicant says that in the last week of February 2006 he had been attacked with firearms but survived. Following that he immediately went into hiding as he feared for his life; and
g)he subsequently found his way to Australia.
The Tribunal’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, as amended by the Protocol relating to the Status of Refugees 1967 (“Convention”). The Tribunal’s decision was based on the following findings and reasons:
a)the applicant had been given the opportunity to attend a hearing before the Tribunal to give oral evidence but he did not attend. He was given a further opportunity to comment on information in writing in accordance with s.424A of the Act but he did not avail himself of that opportunity either. Instead, on 20 October and again on 20 November 2006 the applicant sought more time to produce documents when, in the Tribunal’s view, it appeared that the applicant ought readily to have been able to clarify the inconsistencies in his evidence himself. The Tribunal concluded that the result was that the evidence before it was in a very unsatisfactory state;
b)the Tribunal found that inconsistencies in the applicant’s case went to his credibility;
c)the Tribunal also commented that the fact that the applicant had returned to Pakistan on two occasions following his trips to Indonesia cast doubt on his claim that his life was being threatened in Pakistan and suggested that he did not fear being persecuted were he to return there.
In essence the Tribunal found:
Having regard to the problems with the Applicant’s evidence identified above I do not accept on the evidence before me that the Applicant has been attacked, harassed, arrested, threatened with death or otherwise persecuted for reasons of his claimed marriage to a Christian woman, as he claims. (CB 74).
Proceedings in this Court
The grounds of the application were pleaded in the following terms:
1. That the respondents did not properly appreciated [sic] the claim.
2. That respondent number two did not gave sufficient time to the applicant so as to enable the applicant to produce the document. There is a denial of natural justice. There is also jurisdictional error.
Dealing with each of these grounds in turn:
The respondents did not properly appreciated [sic] the claim
The applicant advised the Court that he did not draw his application. It was apparent that he did not really know what was in it and when he was asked to explain what the first ground meant he submitted that it related to the inability of the Tribunal to understand why the applicant needed additional time to gather together the documents he says he wished to put before the Tribunal. However, as the applicant did not draw the application himself it is appropriate to deal with it as it appears as well as in the way that the applicant suggested at the hearing it ought to be read.
When the application says that the respondents did not properly appreciate the claim, it is important to understand what the claim was. The applicant claims to have feared persecution because he married a Christian woman. Did the Tribunal misunderstand this or fail to appreciate the facts? A consideration of the Tribunal's decision and the recounting of the claims made by the applicant, which appear in these reasons at [5] above, indicate that the Tribunal did understand the nature of the claim that was being made by the applicant and the facts which he advanced in support of that claim. The applicant has not indicated to the Court what was not appreciated or understood. It is apparent that the Tribunal considered and weighed such material as was before it.
The problem for the applicant is that in the considering and weighing of the evidence, the Tribunal did not accept the applicant's claim. What this ground of the application appears to be is an application for merits review. It is not for this Court in proceedings for judicial review to review the findings of fact by the Tribunal nor is it open to this Court to undertake a re-hearing of the merits of the applicant's claim. In judicial review proceedings the role of the Court is to determine whether the procedures the Tribunal followed were correct rather than whether or not the outcome was one which the applicant or even this Court considers to have been the correct outcome. It is not open, in these proceedings, to challenge the findings of fact of the Tribunal unless the challenge is to a jurisdictional fact which is not the case here. Consequently this ground is not made out to the extent that it relates to the Tribunal not appreciating the claim which was made.
In relation to what the applicant said today, namely that this ground relates to the Tribunal not understanding the basis on which the applicant sought additional time for the production of documents, it is important to know whether or not the applicant had given any reasons to the Tribunal to explain why the applicant wanted additional time. It was for the applicant to make out grounds for an adjournment of his hearing and it was within the powers of the Tribunal to decide whether or not an adjournment would be granted.
The applicant first sought additional time to produce documents in his letter to the Tribunal dated 8 September 2006. In that letter he describes the documents he wished to put before the Tribunal as being:
very important in regarding my application. (CB 52).
In his next letter to the Tribunal on this subject, dated 20 October 2006, the applicant says that he wishes to put before the Tribunal all the documents, whatever those were, without identifying them, simply saying:
Please give me last time more weeks so I can proved my all documents which is very import for my application … (CB 59).
The day before the Tribunal was to deliver its decision the applicant wrote again to the Tribunal. The fax notations at the top and the bottom of this letter indicate that it was sent to and received by the Tribunal on 20 November 2006. In that letter the applicant says the documents he wanted to put before the Tribunal were:
very important. (CB 62).
In none of those letters does the applicant identify reasons why the documents should have been considered so necessary to be considered by the Tribunal that an adjournment ought to have been granted, other than to say that they were very important. In the circumstances, it cannot be concluded that the Tribunal did not appreciate the importance of the documents. All the Tribunal knew was that the applicant said that they were very important.
It was for the Tribunal to conclude whether they were sufficiently important to justify an adjournment. There is nothing in those documents to suggest that the Tribunal misunderstood what the applicant was saying nor any basis to conclude that this ground, as characterised by the applicant in his oral submissions, has been made out.
Consequently, no jurisdictional error is demonstrated in relation to the first ground of review.
That respondent number two did not gave sufficient time to the applicant so as to enable the applicant to produce the document. There is a denial of natural justice. There is also jurisdictional error.
In relation to the second ground of review, which is also based on the Tribunal not giving the applicant sufficient time to produce documents, it is important to consider the chronology of this matter. At the outset it should be observed that the protection visa application was signed on 11 April 2006 but that the Tribunal's hearing was listed for
27 September 2006. After the lodgement of the application, the delegate refused the application for protection visa following which an application to the Tribunal was made and, judging by the receipt stamps appearing on the copy of the application appearing in the Court Book, it was received by the Tribunal on 17 August 2006. This is confirmed by the first paragraph of the Tribunal's letter of that date (CB 48).
By letter dated 24 August 2006 (CB 50 – 51) the Tribunal invited the applicant to a hearing and it also invited the applicant to submit any additional documents or written arguments which he wished the Tribunal to consider. In that letter the Tribunal notified the hearing date as 27 September 2006. On 8 September 2006 the applicant wrote to the Tribunal the letter which has already been referred to in these reasons at [14]. On 27 September 2006 following the applicant's non-attendance at the listed hearing of the Tribunal, the Tribunal wrote to the applicant a letter pursuant to s.424A of the Act inviting his comments on various matters. On 20 October 2006 the applicant replied to the Tribunal in the letter which has also been referred to previously in these reasons at [15]. On 2 November 2006 the Tribunal wrote to the applicant advising him that its decision would be delivered on 21 November 2006 and on 20 November 2006 the applicant sent the letter which has been referred to at [16].
In none of those letters did the applicant ever say what documents were to be provided. As has already been discussed, the applicant did not make it clear to the Tribunal why the documents he said he wanted to put before it were so important that they justified an adjournment of the hearing or why, were the matter to proceed, he would have been denied natural justice. Similarly, nothing has been put before this Court that it can consider whether whatever the Tribunal may not have seen was such as to have caused the procedure to miscarry in some way.
It is important to note that the application in these proceedings was filed on 12 December 2006 and the matter went before the Registrar on 1 February 2007 when consent orders were made which included an order that the applicant file and serve by 26 April 2007 any affidavit containing additional evidence to be relied upon. No such additional affidavit has been filed and no additional evidence has been put before the Court.
At the hearing the applicant indicated that he wished these proceedings to be adjourned in order that he could produce to this Court the documents which he had wished to put before the Tribunal. He advised the Court that not only were the documents not available in Australia, they were not yet available in Pakistan. Therefore there is nothing before the Court upon which it can conclude that the material which was not shown to the Tribunal was of any particular significance.
In essence what the applicant is saying when he claims that he has been denied natural justice and that there was a jurisdictional error in the Tribunal's decision to proceed to make its decision in the absence of these documents which are referred to in the applicant's correspondence, is that he has not been given a proper hearing. Section 425(1) of the Act provides:
The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
That invitation must be to a hearing which is both real and meaningful. If the applicant has been denied the opportunity to have a real and meaningful hearing then there will have been a breach of s.425 and jurisdictional error. However, as has already been noted, there is no evidence before the Court that the documents which the applicant refers to in his correspondence to the Tribunal were of relevance or helpful in any way to the application which he was putting before the Tribunal.
It is incumbent upon the applicant to show that there has been a breach of s.425 and that the hearing before the Tribunal was not a real or meaningful one. However, there was nothing before the Tribunal and nothing before this Court which would suggest that that was the case. Consequently, I do not find that there has been a denial to the applicant of a real and meaningful hearing or that there has been a breach of s.425 of the Act.
Generally
But, in any event, it is important to observe that the basis of the Tribunal's decision was the inconsistencies in the versions of events submitted by the applicant to the Department and also inconsistencies between the facts he advanced and the claims that he made. There are three relevant findings by the Tribunal. At page 74 of the Court Book the Tribunal is recorded as saying this:
I do not accept on the evidence before me that the Applicant had to move from one place to another in Pakistan after his marriage in August 1993 in order to save his life. As noted above, he said in his original application for a protection visa that he worked as a clerk for the Pakistan Cement Factory in Rawalpindi from 1987 to 21 December 2004.
The next conclusion by the Tribunal is expressed in the following terms:
I do not accept that the Applicant genuinely fears persecution from members of his wife's family, from hired killers or the police acting at the behest of members of his wife's family, or from the Christian community more generally, as a result of his claimed marriage to a Christian woman. As the Tribunal stated,
I consider that the fact that the Applicant returned to Pakistan from Indonesia in April 2005 and again in November 2005 casts doubt on his claims that his life was being threatened in Pakistan and suggests that he did not fear being persecuted if he returned to Pakistan. (CB 74).
The Tribunal reached a conclusion based on those facts which it expressed in the following terms:
Having regard to the problems with the Applicant's evidence identified above, I do not accept on the evidence before me, that the Applicant has been attacked, harassed, arrested, threatened with death or otherwise persecuted for reasons of his claimed marriage to a Christian woman, as he claims. (CB 74).
A consideration of those passages indicates that it is the inconsistencies and improbabilities in the material which was before the Tribunal, rather than material which was not before the Tribunal, which led it to the conclusion which it reached. It is also significant that these matters were raised expressly by the Tribunal in the s.424A(1) letter dated 27 September 2006. In the final paragraph on the first page of that letter and in the first paragraph on the second page of that letter, the Tribunal raises with the applicant issues relating to his relocation or non-relocation within Pakistan and the fact that he returned to Pakistan following his trips to Indonesia. The applicant's response to the s.424A(1) letter, which is his letter of 20 October 2006, does not deal with the matters which were put to him by the Tribunal. He had an opportunity to correct any misapprehension which the Tribunal had, or to put in that response any additional information which he wanted the Tribunal to consider. Whether or not the documents which the applicant said he wanted to obtain from Pakistan would have addressed that issue, it is nevertheless the fact that the applicant said nothing in his letter of 20 October 2006 which addressed the Tribunal's concerns.
Finally, it should not be overlooked that the applicant did not attend the Tribunal hearing. He was invited to do so and did not attend.
The Tribunal having sent the applicant an invitation to appear pursuant to s.425, no error is evidenced by the fact that the Tribunal proceeded to decide the matter. Section 426A(1) of the Act provides as follows:
If the applicant:
(a) is invited under s.425 to appear before the Tribunal;
(b) does not appear before the Tribunal on the day on which, or at the time and place at which the applicant is scheduled to appear;
the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it.
The Tribunal was obliged to invite the applicant to a hearing to give evidence and present arguments relating to the issues arising in relation to the decision under the review except in circumstances where it considered it could decide the review in his favour on the material before it or any of the other circumstances set out in s.425(2). As the Tribunal said in its letter inviting the applicant to a hearing dated 24 August 2006:
The Tribunal has considered the material before it in relation to your application but is unable to make a decision in your favour on this information alone.
Clearly, the Tribunal needed additional information from the applicant before it could make a finding in his favour. By not attending the hearing, the applicant denied himself the opportunity of putting such information before the Tribunal and denied the Tribunal the opportunity of receiving and considering that information which might have permitted it to reach the satisfaction necessary in order to make a decision in his favour. The applicant not having attended, it is hardly surprising the Tribunal was unable to reach that level of satisfaction.
Conclusion
As jurisdictional error on the part of the Tribunal has not been demonstrated, the application will be dismissed.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Cameron FM.
Associate:
Date: 7 June 2007
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