SZJYP v Minister for Immigration

[2007] FMCA 2081

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJYP v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 2081

MIGRATION – Review of a Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – application dismissed.

The applicant in these proceedings is not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) and has been given the pseudonym “SZJYP”.

Migration Act 1958 (Cth), ss.91X, 424A, Division 4, Part 7

Applicant S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Applicant: SZJYP

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG 7 of 2007

Judgment of: Lloyd-Jones FM

Hearing date: 28 September 2007

Delivered at: Sydney

Delivered on: 14 December 2007

REPRESENTATION

Advocate for the Applicant: The applicant appeared in person with the assistance of a Punjabi interpreter

Counsel for the Respondents: Mr M P Cleary

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application filed on 2 January 2007 is dismissed.

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 7 of 2007

SZJYP

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

And

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The proceedings

1. The applicant is a single male born in Sialkot, Pakistan in 1978. He states that his father and seven siblings still live in Pakistan. He claims to have received 10 years of formal education and was employed as a “business partner”.

2. The applicant’s substantive claims in his original protection visa application centred on his membership of the Pakistan Muslim League and his involvement with political rivals resulting in unprovoked attacks, injuries, imprisonment and physical and mental torture.

3. At the Tribunal hearing the applicant was asked how he had prepared his protection visa application and he answered:

   …a friend referred him to a Pakistani lawyer named Maheed Khan who was living in Griffith but who later returned to Pakistan.  He said he’d believed Khan was a registered Migration Agent and that he had other clients.  He had two meetings with Khan and paid him $1,000 to prepare and lodge the application.  He told Khan that his life was in danger because of a complaint lodged with the police by his brothers. Khan asked him some questions and then wrote out the application and statement in English.  These documents were not translated back into Punjabi for the applicant’s benefit and he had no idea what was in them. (CB 74)

4. The applicant told the Tribunal that he feared returning to Pakistan because he believed he was in danger from his brothers who had complained to the police that he stole money. He claims that he had tried to relocate within Pakistan but had been arrested. He believes that he is at risk of being killed by his brothers or the Sialkot police. The applicant further denies being a member of any political party and states that these claims had been invented by his migration agent.

5. The applicant arrived in Australia on 23 June 2006 and made an application for a Protection (Class XA) visa on 7 July 2006. A delegate of the first respondent refused to grant the visa on 11 September 2006 and the applicant applied to the Refugee Review Tribunal (“the Tribunal”) for review of the delegate’s decision. The Tribunal affirmed the delegate’s decision and the applicant applied to the Federal Magistrates Court for judicial review of the Tribunal decision.

6. A Court Book (“CB”) prepared and filed by the first respondent’s solicitors is marked Exhibit “A”. This document was read into evidence.

7. An amended application filed on 1 June 2007 contains seven grounds of review but these are made without particularisation or any supporting affidavit material or submissions.

Consideration

Ground one

1.That the applicant is a citizen of Pakistan, who arrived in Australia, on 23 June 2006, and lodged his application for the grant of the Protection visa before the Department of Immigration.  The applicant’s application/statement of claim was prepared by a person who deposed himself as a lawyer or Migration Agent.  The applicant told him the story of his own sufferings, but the said person cooked up a story of his own for the applicant.  The said claims were of a political party, the applicant was never involved in politics, the whole typed claim or the statement was not true.  The applicant signed the application for the grant of a Protection visa, the applicant was unable to understood what was written in the said claim, the applicant also signed the form and the claim not knowing the contents written therein.

1. Mr Cleary, for the first respondent, submits that at the Tribunal hearing the applicant stated, and the Tribunal accepted, that the claims in the protection visa application were invented by the his migration agent. The Tribunal disregarded these claims and went on to make a finding on the applicant’s substantive claims as they were expressed at the hearing. Whether or not the migration agent may have misled the applicant is not a ground of asserting jurisdictional error on the part of the Tribunal: Applicant S157/2002 v Commonwealth of Australia (2003) 211 CLR 476.

2. I agree with Mr Cleary’s submissions that this ground is without merit and is in effect a recycling of the claims made at the Tribunal hearing. There is no attempt to identify any error and the ground cannot be sustained.

Ground two

2.That the applicant has become the victim of his own family members, the applicant’s brothers got a report registered with the police station Sialkot that the applicant has stolen about 10 or 12 Lakhs of Pakistani Rupees (More than one million Pakistani Rupees).  The applicant was harassed by the brothers of the applicant.  The father of the applicant is no longer in the business, the applicant’s family was involved in the manufacturing of the surgical items.  After the father the older brothers wanted the applicant to be ousted from the business, and they wanted the applicant to be away from them, as the property was also involved.  The older brothers of the applicant wanted the applicant to leave his part of the shares of the moveable and immoveable property.  The older brothers are after the life of the applicant, at any costs they want the applicant to be away.

1. Mr Cleary submits that this ground seeks to argue the merits of the review application to the Tribunal and appears to be a restatement of the applicant’s claim for asylum.

2. I agree with that submission that this Court cannot engage in a merits review of the Tribunal decision: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [31] per Brennan CJ, Toohey and Gummow JJ. Any findings of fact are within the jurisdiction of the Tribunal. I believe that the applicant misunderstands the purpose of this hearing.

Ground three

3.That when the applicant was called for the interview before the respondent number two RRT, the applicant was totally ignored of the fact that the statement of claim is made out differently, the applicant told the RRT that the applicant is not involved in any kind of the political activities, the applicant told the truth to the member of the RRT.  The persecutions made by the brothers of the applicant is so strong that the applicant was once arrested in the city of Rawalpindi in the year 2002, a twin city of Islamabad.

1. Mr Cleary notes that the applicant asserts that the Tribunal ignored his claims. However, the Tribunal carefully considered the applicant’s claims and then made findings based on them. The Tribunal undertook the review in accordance with Division 4, Part 7 of the Migration Act 1958 (Cth) (“the Act”). It conducted a hearing to which the applicant was invited, and attended and gave evidence. Mr Cleary submits that no s.424A obligation arose in the circumstances of the case. When the applicant advised the Tribunal that his original visa application contained false claims, the Tribunal replied that all those issues would be put aside and invited the applicant to restate his claims. The decision was isolated to the circumstances set out by the applicant in his oral evidence to the Tribunal during the hearing. Mr Cleary submits, and I agree with the submission, that the Tribunal has not committed any jurisdictional error in its approach and this ground cannot be sustained.

Grounds four to eight

4.The applicant did not stole any money of his brother, but was falsely implicated in the matter, in order to get rid of the applicant.  The applicant’s fear is genuine, and is based on the solid grounds, the brothers of the applicant wanted to kill the applicant in any case what so ever.  The applicant was bashed and was tortured by the police at Rawalpindi.  The applicant again fears that the applicant shall be bashed, and would undergo lot of miseries and tortures, as the brothers of the applicants are after the life of the applicant.

5.That the life of the applicant is in great danger, the life of the applicant can be taken away by his brothers at any times, as they are after the life of the applicant, they want to kill the applicant at any cost, as they do not want to see the applicant at any cost.  The applicant had a life full of tension and depression as the applicant is in constant danger of being killed by his brothers.  The applicant’s brothers are so strong and influential that they can at any time finish the applicant for sake of the property and other belongings which the applicant will receive in the heritance, this is the main cause of the applicant’s fears, the fears and the life threat is real and the applicant shall be done to death if the applicant is sent back to Pakistan.

6.That there was no other door was open to the applicant safety, the applicant got a chance to get a visa through an agent, the applicant reached in Australia, the applicant was not aware of the legal complications as such the applicant stated before the RRT, the real facts and figures, the applicant did not lied on any point while in the course of the interview.  The applicant has a well founded fear of his life, the applicant cannot get the protection from any where, the applicant tried his best to get the protection, but the applicant was unable to get the same, as the applicant does not know more about the courts systems and other legal procedures elsewhere, as such the applicant had no alternative, but to lodge an application for protection, the applicant    approached to his friends who introduced the applicant to a person who was said to be a Lawyer or Migration Agent, who made and cooked up a story to which the applicant denied before the hearing at RRT.

7.That the applicant has a well founded fear by his brothers as such the applicant has been deprived off the protection, the applicant left the country, with the help of an agent who arranged the applicant to reach in Australia.  The applicant was arrested, bashed, and was put to systematic harassments, the applicant has already submitted above that the applicant’s life shall be taken away in all the above given circumstances.  The RRT should have considered the claims of the applicant with the sympathetic behaviour as the applicant has not concealed any fact or the applicant did not lied for any thing.

8.That if the applicant is sent back to Pakistan, in that case, the applicant’s life shall be taken way.

1. Mr Cleary submits in written submissions that these grounds are a further attempt by the applicant to reinstate his claims and invite the Court to undertake merits review. The Tribunal did consider the claims of persecution made by the applicant but rejected them because it was not satisfied that he had suffered or fears any harm for a Convention reason. The claims as stated by the applicant during the Tribunal hearing concerned a family dispute between himself and his siblings. This does not establish a Convention nexus. The manner in which the Tribunal conducted the review process complies with the requirements of Division 4, Part 7 of the Act and does not give rise to any error by the Tribunal. Grounds four to eight do not raise any jurisdictional error and these grounds cannot be sustained.

2. The applicant was a self represented litigant that appeared with the assistance of a Punjabi interpreter. He confirmed that although he filed an amended application, he had not prepared any written submissions in support of those grounds. When invited to make oral submissions, the applicant said he would rely on his amended application. He further confirmed that he had received and considered the written submissions of the first respondent. The applicant declined to comment on the first respondent’s written submissions. He also said in Court that he was not in fact a refugee but was extremely fearful of his brothers should he return to Pakistan.

3. The Tribunal’s reasons indicate that it accepted that the applicant’s visa application had been prepared by his agent, who included a substantially false set of claims based on his involvement with the Pakistan Muslim League. The Tribunal also accepted that the applicant had signed the visa application in ignorance and without the benefit of its contents being explained to him. Consequently, the Tribunal discounted all of that material and took into account the claims as stated by the applicant during the hearing. It also accepted that because of his brothers’ false accusation that he stole money, the applicant was arrested and mistreated by police. However the Tribunal formed the view that his arrest was an unfortunate and regrettable incident that was not likely to be repeated. In the circumstances, the Tribunal was not satisfied that the applicant had a well-founded fear of persecution for a Convention reason should he return to Pakistan in the foreseeable future.

Conclusion

1. The applicant is a self-represented litigant and the person who assisted him in the preparation of the amended application had little or no understanding of the operation of the protection visa provisions of the Act or the purpose of seeking judicial review in this Court. The application merely repeats the claims he made before the Tribunal. A review of the contents of the Court Book and particularly the Tribunal decision does not reveal on its face any jurisdictional error by the Tribunal in its decision-making process. Consequently, the application should be dismissed with costs.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.

Associate: 

Date:  14 December 2007