SZJZS v Minister for Immigration
[2007] FMCA 2003
•4 December 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJZS v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 2003 |
| MIGRATION – Review of a Refugee Review Tribunal decision – refusal of a Protection (class XA) visa – no reviewable error – application dismissed. |
| Migration Act 1958 (Cth), ss.91X, 424A |
| Appellant P119/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 230 Re Minister for Immigration and Multicultural Affairs; ex parte S20/2002 (2003) 198 ALR 59 SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123 VAO v Minister for Immigration and Multicultural Affairs [2002] FCAFC 31 VTAG v Minister for Immigration and Multicultural Affairs (2005) 141 FCR 291 |
| Applicant: | SZJZS |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 51 of 2007 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 21 September 2007 |
| Delivered at: | Sydney |
| Delivered on: | 4 December 2007 |
REPRESENTATION
| Advocate for the Applicant: | The applicant appeared in person with the assistance of a Pashto interpreter |
| Counsel for the Respondents: | Ms T Wong |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The name of the first respondent be amended to read “Minister for Immigration and Citizenship”.
The application filed on 16 January 2007 is dismissed.
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 51 of 2007
| SZJZS |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
And
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The proceedings
The applicant in these proceedings is not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) (“the Act”) and has been given the pseudonym “SZJZS”.
The applicant is a citizen of Pakistan and was born in Manja, Swat District, in the northwest of Pakistan. He is a Muslim of Pashtun ethnicity and a seaman by occupation. He arrived in Australia on 26 April 2006 as a ship deserter. He lodged a Protection visa application on 9 June 2006. A delegate of the first respondent refused to grant him a visa and this decision was affirmed by the Refugee Review Tribunal (“the Tribunal”). He now seeks judicial review of the Tribunal decision. The applicant claims he was a staunch supporter of the Pakistan People’s Party (PPP) and general secretary of its student wing, the Pakistan Student Federation (PSF). Opposing student factions are the Islami Jamaiti Talba (IJT) of the national Islamic Party, Jammatt Islami (JI).
During his tenure at the PSF, the applicant and the head of the IJT developed a personal enmity over different issues. In 1998 the applicant joined a shipping company and worked on the ships during the year and visited his family home from time to time. He claims that during these visits he continued to participate in PPP activities.
The applicant claims that he and his girlfriend were accused of having a sexual relationship and were liable to be punished under Islamic law. He claims that the girl’s family attacked his home and injured his brother after news of their relationship became public. Local activists and college opponents called a jirga which decreed that the applicant was guilty of extra marital sexual intercourse (zina) and should be killed. He claims he went into hiding for three or four months until he left Pakistan in February 2006 to resume his shipping job. He left his ship in Adelaide so that he did not have to return to Pakistan because he fears serious harm from influential Islamic extremists.
The applicant applied for a Protection (Class XA) visa on 9 June 2006. A delegate of the Minister refused to grant the visa on 21 July 2006 and the applicant applied to the Tribunal to review the delegate’s decision. The Tribunal affirmed the delegate’s decision and the applicant applied to this Court for judicial review of the Tribunal decision of 24 November 2006.
A Court Book (“CB”) prepared and filed by the first respondent's solicitors is marked Exhibit “A”. This document was read into evidence.
Consideration
At the first Court date of 28 February 2007 the applicant indicated that he wished to participate in the scheme giving unrepresented applicants in refugee matters independent legal advice. The applicant was also granted leave to file an amended application giving complete particulars of each ground of review relied upon. The applicant availed himself of this opportunity. He filed an amended application on 18 May 2007 setting out two grounds of review with particulars.
The applicant also filed written submissions prior to the hearing which, in many respects, repeat the particulars contained in the amended application. However, as he did not make oral submissions but relied upon the amended application and the written submissions, I will reproduce the particulars as pleaded and add a separate section identified as “submission” below each particular as a convenient method of presenting the applicant’s argument.
Ground one – breach of s.424A
Whether the Refugee Review Tribunal (the Tribunal) made a jurisdictional error not following the obligation u/s 424A of the Migration Act 1958 (the Act).
Particulars:
i) The Tribunal mentioned that it did not accept that the applicant was a member or office holder of the Pakistan Peoples party (Parliamentarians) or any faction of the PPP between 1996 and 2006 for the reason that the applicant was not able to explain why he join the party he did not know about the policies and the organizational structure of the party. But the Tribunal should have known that the applicant had left the country to save his life (CB-142).
Submission:
Substantially repeats the particular and - to prove persecution the applicant need not to explain the reason or satisfy the Tribunal why he joined the party and this is not a requirement of the Act.
ii) The Tribunal did not put any reason why it did not accept that the applicant was member of the People’s Student Federation and it also did not inform the applicant why it did not accept that the applicant obtained post secondary education. It also did not accept applicant’s public speeches on party and the discharge slip from a hospital in Saidu without seeking any explanation & comments from the applicant. (CB-143)
Submission:
… but the Tribunal did not mention how it concluded that the applicant’s documents have been fabricated without giving specific reason and specific prove the Tribunal can’t not say it and without giving an opportunity to provide explanation in this [regard] the tribunal made a jurisdictional error.
The Tribunal did not accept that the applicant was at school or college and he was a member of the People’s Student Federation so it did not accept the hostile relationship and failure to give evidence about the opponent, can not be the basis to reject a claim, this a jurisdictional mistake on the part of the Tribunal, if someone is not able to provide information about the opponent that will not give any opportunity to reject the claim.(CB-143 3rd paragraph).
The Tribunal made a mistake when it did not believe that the applicant made a speech at the village and was injured by his opponent or was admitted to hospital as claimed and the reason is that the applicant is not a truthful witness but the documental evidences which are not anyway made by the applicant and which are not anyway related with the applicant’s truthfulness, can not be rejected on the basis of the truthfulness ground and the Tribunal was not very fair on this issue. … The Tribunal can not reject those evidences which were not oral evidences given from the mouth of the applicant, the evidences on which the applicant did not have any control can not be rejected on the truthfulness of the applicant or without giving any opportunity to give an explanation to the Tribunal(CB-143 last paragraph).
iii) The Tribunal did not accept the applicant’s relation ship with the girl just for this reason that the applicant did not have the information about the girl but the Tribunal should not consider that when the applicant’s life was in danger then it is very hard to keep information about others. (CB-144)
Submission:
The Tribunal did not accept the relationship with the girl and the accusation of crime of “Zina” (extra martial sexual relationship) and the threat of persecution for the accusation only because the applicant did not made enquiries about the girl the applicant did not know what happened to the girl, this is a unfair procedure of the Tribunal to reject a claim because when a person’s life is in danger and when he wants to save his life then his action can not be determined by this kind of conditional circumstantial observation. Because enquiries sometime can cause problem and the applicant wanted to save himself.(CB-144 2nd paragraph)
The Tribunal should not reject the document without giving an opportunity to the applicant to present the original of the translation of a letter. Any paper or written evidence can not be rejected on the context of the applicant’s oral evidence and this not fair procedure to assess a documentary evidence.
The Country information given by the Tribunal support the applicant’s claim (CB 139.140 Zina and Tribal Jigras and Customary Law) so the rejection of the applicant’s claim is a mistake by the Tribunal.
iv) The Tribunal did not ask any details written comments from the applicant regarding the relocation and it did not give any opportunity to explain that is there any issue that can make relocation impossible. (CB-144)
Submission:
The relocation issue was not assessed properly because in some cases the Tribunal used very old country information and the Tribunal did not check those information correctly.
v) The Tribunal made a jurisdictional error when it did not give the particulars of information as requested by s.424A of the Act to the applicant regarding the alleged incorrectness of the information.
Submission:
The Tribunal made a jurisdictional error by not giving the particulars of information as requested by s 424A of the Act in regard to the alleged incorrectness of the information and the Tribunal also did not comply s424A(1) of the Act regarding the letters given by others in supporting the applicant’s claim.
vi) The Tribunal also did not comply s.424A(1) regarding the letter b y others in supporting the applicant’s claim.
The applicant referred to SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 at [10] per Moore J:
…whether there was information which the Tribunal considered would be the reason or part of the reason for affirming the decision under review and, if so, whether the Tribunal met its obligations under s 424A of the Act to provide the appellant with the particulars of that information in writing. I would, where necessary, grant each appellant leave to raise and argue the points dealt in the following reasons.
The applicant also referred to SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 at [70] per McHugh J:
Because the language of s 424A is imperative, failure to comply with the obligation to provide the applicant with particulars of adverse information in writing constitutes a breach of that section.
Ms Wong, for the first respondent, submits in her written submissions that the alleged failure of the Tribunal to comply with s.424A of the Act is raised with respect to two matters:
a)the “alleged incorrectness of the information”; and
b)the letters given by others in support of the applicant’s claims.
Ms Wong submits that in particular one, the applicant appears to complain of the failure of the Tribunal to alert him to its conclusion that he was not a truthful or accurate witness. The Tribunal’s conclusion that the material aspects of the applicant’s claim should not be accepted was based upon:
a)the failure of the applicant to demonstrate sufficient knowledge of politics or social issues;
b)the evidence given by the applicant at the hearing, including vague and unclear responses to the Tribunal’s questions and inconsistencies in his evidence; and
c)inconsistencies between evidence given by the applicant at the hearing and documentary evidence he provided to the Tribunal.
Ms Wong then referred to VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123 at [24] where Finn, Merkel and Stone JJ stated:
…there is now a considerable body of case law concerned with the compass of the term "information" in its s 424A(1) setting. The following propositions emerge from it:
(i)…
(ii)…
(iii)the word does not encompass the Tribunal’s subjective appraisals, thought processes or determinations: Tin at [54]; Paul at [95]; Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 1679 at [25]; appr [2002] FCAFC 120; nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the Tribunal in weighing up the evidence by reference to those gaps, etc: WAGP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 124 FCR 276 at [26] – [29].
Ms Wong submits that the Tribunal therefore did not breach s.424A of the Act by not providing the applicant with particulars of the inaccuracies it found in his evidence.
Ms Wong submits that to the extent that the Tribunal relied upon evidence given by the applicant at the hearing, together with letters and other documents he submitted to the Tribunal, this information falls within the exception in s.424A(3)(b) which states:
(3) This section does not apply to information:
(a)…
(b)that the applicant for review gave for the purpose of the application; or
(ba)…
(c)…
I agree with the written submissions provided by Ms Wong that the items identified in the amended application and supported by his written submissions do not identify any jurisdictional error in respect of s.424A.
Ms Wong submits that particulars (i), (iii), (v) and (vii) of ground one in the amended application raise a number of complaints about the manner in which the Tribunal rejected his claims. These are identified as:
a)the Tribunal was not entitled to take into account that the applicant could not explain why he joined the PPP;
b)the Tribunal was not entitled to reject the applicant’s claim that he had a hostile relationship with a leader of another political party because he was not a member of the PSF;
c)the Tribunal was not entitled to reject the applicant’s claim that he had an extra marital relationship on the grounds that the applicant did not know what happened to the girl after he left Pakistan; and
d)the country information regarding zinas, tribal jirgas and customary law was in favour of the applicant.
I agree with the submission of Ms Wong that it is not apparent that there was any lack of logic or unreasonableness in the manner in which the Tribunal reached its conclusions. These four complaints of the applicant amount to a request for merits review, which is not within the jurisdiction of this Court.
The other area of complaint raised in the particulars was that the Tribunal erred in the way it dealt with documents provided to it by the applicant. The claims are:
a)the Tribunal did not mention how it concluded that the applicant’s documents have been fabricated;
b)the Tribunal did not give the applicant an opportunity to provide an explanation regarding the documents;
c)the Tribunal was not entitled to reject the documents on the basis that the applicant was not truthful;
d)the Tribunal should not have rejected the documents presented by the applicant without giving him an opportunity to present the original of the translations.
With respect to the issue of fabrication, Ms Wong submits that the Tribunal gave detailed reasons for refusing to give any weight to the documents provided by the applicant. Country information indicated that it was relatively easy to obtain false documents in Pakistan. The Tribunal formed the view that the applicant was not truthful or accurate in his claims in support of his persecution. There were inconsistencies between his evidence and information contained within documents provided, such as the hospital discharge documents. The applicant also lacked knowledge of the nature of the documents he provided and relied upon. Ms Wong submits that the claim that the applicant had been denied the opportunity to explain the documents and their contents is inconsistent with what actually occurred. The Tribunal decision states under “Claims and Evidence”:
In relation to the documents submitted by the applicant I put it to him that the country information available to the Tribunal indicated that false documents were relatively easy to obtain in Pakistan and whilst this did not necessarily mean that all documents are false the information had to be taken into account when considering all the evidence. (CB 134)
This put the applicant on notice that the genuineness of the documents was in issue. He was given the opportunity to respond to this issue during the hearing or in written submissions after the hearing. The applicant failed to do so.
Ms Wong submits in respect of the third issue that the Tribunal is entitled to reject corroborative evidence as being of no weight when the applicant’s credibility has already been substantially weakened: Re Minister for Immigration and Multicultural Affairs; ex parte S20/2002 (2003) 198 ALR 59 at [49].
In respect of the fourth issue, the Tribunal is under no obligation to provide the applicant with more specific reasons why a document may carry little weight, when it has already alerted him to its concerns. This is particularly significant when the applicant is unable to provide originals but relies on copies. Ms Wong submits that in the absence of a transcript of the Tribunal hearing, it is not possible to demonstrate that the Tribunal failed to alert the applicant of its concerns regarding the absence of original documents. I agree and accept the submission that the Tribunal reached its conclusion in conformity with its obligations under Division 4 of Part 7 of the Migration Act and that particulars (i)-(vii) of ground one do not identify any jurisdictional error.
Particular (viii) of ground one claims that the relocation issue was assessed using very old country information and that the Tribunal had failed to check the information correctly. This claim contradicts the Tribunal decision which indicates that the reports from 2005 and 2006 were used by the Tribunal to reach its decision regarding personal safety in large cities in Pakistan. It is submitted that there is no evidence to suggest that these reports were not the most recent and reliable information available to the Tribunal when it was considering the application. Further, there is no obligation on the Tribunal to enquire after the most recent country information or accept more recent country information even if it had been provided by the applicant: VAO v Minister for Immigration and Multicultural Affairs [2002] FCAFC 31; VTAG v Minister for Immigration and Multicultural Affairs (2005) 141 FCR 291.
I agree with the written submissions prepared by Ms Wong that there is no jurisdictional error demonstrated by the particulars to ground one. I am satisfied that this ground of review cannot be sustained.
Ground two – failure to organise a Pakistani Pashto interpreter
The Tribunal denied the applicant natural justice when the Tribunal was testing the applicant at the hearing.
Particulars
(i)The Tribunal did not arrange a PAKISTANI PUSHTO LANGUAGE INTERPRETER at the time of the hearing before the Tribunal – which the applicant informed the Tribunal (CB 80) where in question no. 2b. says “Do you need an interpreter? Answer was – yes. Language – PUSHTO Pakistan.” But the tribunal failed to comply with that request of the applicant and did not arrange a Pakistani Pushto interpreter, so the applicant was denied natural justice and the applicant did not have a fair hearing before the Tribunal. So the applicant did not understand why his claim was rejected when the Tribunal did not properly complied with its obligation and the Tribunal did not follow s420 of the Act.
Submission:
The applicant requested the Tribunal to arrange a Pakistani Pushto interpreter for the hearing before the Tribunal because there is a huge difference between Pakistani Pushto language and Afghani Pushto language but the Tribunal did not comply with the request of the applicant and that’s why the applicant’s oral evidences were not translated properly to the Tribunal. So the rejection of the applicant’s oral evidences regarding his claim without proper Interpreter is not a fair procedure and the Tribunal made a jurisdictional in this regard. (CB 80)
Ms Wong submits that the Tribunal decision shows that the applicant was assisted at the hearing by an interpreter of the Pashto language (CB 131). There is no transcript of the Tribunal hearing before the Court and the Tribunal decision contains no record of the complaining about the interpreter service provided. It is submitted that the applicant is unable to demonstrate that:
a)the standard of interpretation at the hearing was so inadequate that he was effectively prevented from giving evidence at the Tribunal; or
b)errors made by the interpreter at the hearing were material to the conclusions of the Tribunal adverse to the applicant.
Ms Wong also referred to Appellant P119/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 230.
I accept the submission that no jurisdictional error is established in respect of ground two.
Conclusion
The applicant is a self-represented litigant who appeared with the assistance of a Pashto interpreter. The applicant appears to have received some assistance from an unidentified third party who has some knowledge of this jurisdiction. Unfortunately, he was not in a position to present his own argument and relied on the amended application and written submissions. Ms Wong assisted the Court in the preparation of submissions addressing all the issues raised in the application. I accept those submissions and agree that neither ground of review identifies any jurisdictional error.
Nor is it apparent from the contents of the Court Book or on the face of the Tribunal decision that any other jurisdictional error has been made. In the circumstances, the application should be dismissed with costs.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
Date: 4 December 2007
10
0