SZKAW v Minister for Immigration

[2007] FMCA 1763

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZKAW v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 1763

MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – no breach of div.4 pt.7 of Migration Act 1958 proved – merits review not available in judicial review proceedings.

Migration Act 1958, ss.424A, 425, 474

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476

Applicant: SZKAW

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 141 of 2007

Judgment of: Cameron FM

Hearing date: 17 October 2007

Date of Last Submission: 17 October 2007

Delivered at: Sydney

Delivered on: 17 October 2007

REPRESENTATION

Applicant appeared in person

Counsel for the Respondents: Mr J. Mitchell

Solicitors for the Respondents: Blake Dawson Waldron

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent's costs fixed in the amount of $4,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 141 of 2007

SZKAW

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant is a citizen of Pakistan where, he claims, he is of the Shi’a sect of the Muslim faith.  He alleges that while in Pakistan he converted to the Shi’a sect even though his parents were rigid Sunni believers and that this subsequently led to him being attacked and threatened by Sunni extremists. The applicant left Pakistan for Australia where, he alleges, he has visited a mosque once.

2. The applicant claims to fear persecution in Pakistan because he is of the Shi’a sect of the Muslim faith.

3. After his arrival in Australia, the applicant lodged an application for a protection visa. This was refused by the Minister’s delegate on

   
   

   13 February 2006. The applicant then applied to the Refugee Review Tribunal (“Tribunal”) for a review of that departmental decision. The applicant was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.

4. In these judicial review proceedings the Court cannot rehear the applicant’s application for a visa. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

5. For the reasons which follow, the application will be dismissed.

Background facts

1. 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 (Court Book (“CB”) pages 96 – 99). Relevantly, they are in summary:

   a)the applicant was born Muslim and his parents are rigid Sunni believers;

   b)when he started to take an interest in the Shi’a sect his relatives and friends turned against him;

   c)he ignored them all and continued to visit a Shi’a mosque;

   d)the applicant converted by becoming a follower of Shi’a Imam Sayead Sibte Hasan Bujhari of the Ali Mosque, Shalimar Town, Lahore;

   e)Sunni extremists were after the applicant and wanted to kill him;

   f)the applicant’s family supported the Sunni extremists because the applicant had placed them in an embarrassing situation and they could not face society;

   g)the applicant had strong concerns about being harmed by the applicant’s family and relatives as well as by Sunni extremists;

   h)either on 24 November or 24 March 2005 the applicant was run over by a car driven by Sunni extremists, some of whom were his cousins, and left harmed and mistreated. They threatened that they would kill him if he refused to change his religion. He was hospitalised for three days. This incident was reported to the police and a complaint registered against the perpetrators but no arrest took place;

   i)until the applicant left Pakistan he continued to receive threatening messages;

   j)the applicant submitted to the Tribunal:

   i)a document headed “Shalimar Hospital” which appeared to be a prescription written by a gastroenterologist for drugs which are prescribed for gastric problems rather than for trauma injuries;

   ii)

   a letter from the Shi’a Welfare Society in Lahore, dated

   
   

   10 September 2003, certifying that the applicant “has been adopted our Fiqa i.e. FIQA-E-JAFRIA and his name was entered in our record”; and

   iii)a document purporting to be a report of an assault on him which he gave to the Pakistani authorities.

The Tribunal’s decision and reasons

1. 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, 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 Tribunal had serious concerns about the applicant’s credibility;

   b)the Tribunal rejected the applicant’s central claims that he converted to the Shi’a Muslim sect and was threatened or harmed by his family and others for this reason, noting that:

   i)the applicant was unable to give a coherent account of his reasons for converting from Sunni to Shi’a Islam;

   ii)the applicant was unable to articulate the major differences in belief between the Sunnis and the Shi’a;

   iii)the applicant could not remember when he converted; and

   iv)despite his claims to have been a very committed believer, the applicant has attended a mosque (not necessarily a Shi’a mosque) in Sydney only once in a twelve-month period;

   c)the Tribunal found that the applicant had fabricated his claims of conversion to support his application for a protection visa;

   d)as the Tribunal did not accept that the applicant had converted to Shi’a Islam, it followed that:

   i)the Tribunal did not accept that he was estranged from his family; and

   ii)the Tribunal was not satisfied that the applicant was threatened by members of his family or by Sunni extremists;

   e)while the Tribunal accepted that the applicant may have been involved in a car accident, it did not accept that the accident was the result of a deliberate attack on him because of his conversion to Shi’a Islam;

   f)the Tribunal gave no weight to the document presented by the applicant purporting to be issued by the Shi’a Welfare Society in Lahore in light of the fact that the applicant was unable to display a meaningful awareness of Shi’a beliefs or the date of or reasons for his conversion;

   g)the Tribunal gave no weight to the document submitted by the applicant purporting to be a report of an assault on him, finding that it was a mere assertion made by the applicant to the authorities and noting that there was no evidence that the authorities accepted this statement as a statement of fact; and

   h)the Tribunal gave no weight to the document submitted by the applicant which was a prescription given by a gastroenterologist, noting that it made no reference to the injuries the applicant claimed to have suffered or the circumstances in which he claims to have sustained them.

Proceedings in this Court

1. The relevant ground of the application in these proceedings is expressed in the following terms:

   ‘I want this Court to ask RRT to heard [sic] my case again because I think they didn't judge my circumstances’

2. In Court today the applicant explained that ground as meaning that the Tribunal said he was not a Shi'a Muslim, had no knowledge of Shi'a Islam and was telling lies. As has already been observed in these reasons the only basis on which the Tribunal's decision may be set aside is if that decision is affected by jurisdictional error. The application filed by the applicant in these proceedings does not disclose any conventional jurisdictional error which might justify the writs which the applicant seeks.

3. It is not apparent that any of the provisions of div.4 of pt.7 of the Act, which deal with the conduct of the Tribunal review, have been breached.

4. Although no s.424A notice was served there appears to have been no need to do so as the information relied upon by the Tribunal in reaching its decision was information given to it by the applicant for the purposes of the review or was independent country information. Both of these categories of information fall within the exceptions found in s.424A(3) and thus no s.424A(1) obligations arose in respect of such information.

5. As to s.425, the applicant was invited to attend the Tribunal hearing and he did attend. The issues arising in relation to the decision under review were whether the applicant was a convert from Sunni Islam to Shi'a Islam, whether he had been persecuted as a result of this and whether he now had a well-founded fear of persecution for a Convention reason.

6. A consideration of the Tribunal's decision record reveals that the Tribunal asked the applicant numerous questions as to his religious adherence and the experiences which he had had relating to and consequent upon his alleged conversion. He was asked about significant factual aspects relating to his conversion and the substance of his beliefs. In essence the Tribunal was testing the credibility of the applicant's claims and giving him the opportunity to make them out.

7. It is not apparent that there was any breach by the Tribunal of its obligations under s.425 of the Act nor does it appear that any jurisdictional error arises associated with any other section of div.4, pt.7 of the Act.

8. It is, however, apparent that the Tribunal did give proper consideration to the evidence and arguments which were placed before it by the applicant. Having properly identified the law which it had to apply and the tests prescribed by the law, as I find it did, the Tribunal then considered the evidence and arguments before it in the context of the tests which it had to apply. I find it did so without error.

9. The Tribunal considered the matters advanced by the applicant and ultimately found against him on credibility grounds. Factual findings, and particularly credibility findings, are matters for the Tribunal to determine. Even if this Court took a view of the facts different from that taken by the Tribunal it cannot substitute its own view of what the findings of fact should be. No jurisdictional error is demonstrated if the Tribunal's findings of facts were open to it on the information before it as I find they were here.

10. In reality, a review of the Tribunal's factual and credit findings is what the applicant seeks. He explained his application in terms of a challenge to the Tribunal's factual and credibility findings. This implies he seeks in this Court a review of the merits of his claim. That is not available in these judicial review proceedings.

Conclusion

1. Consequently, jurisdictional error on the part of the Tribunal has not been demonstrated and the application will be dismissed.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Cameron FM

Associate: 

Date:  31 October 2007