SZKCQ v Minister for Immigration

[2008] FMCA 209

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZKCQ v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 209

MIGRATION – Review of 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 “SZKCQ”.

Migration Act 1958 (Cth), ss.91X, 424A

SZBYR v Minister for Immigration & Citizenship [2007] HCA 26

Applicant: SZKCQ

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG 309 of 2007

Judgment of: Lloyd-Jones FM

Hearing date: 5 February 2008

Delivered at: Sydney

Delivered on: 6 March 2008

REPRESENTATION

Advocate for the Applicant: The applicant appeared in person with the assistance of an Urdu interpreter

Counsel for the Respondents: Mr G Kennett

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The name of the first respondent be amended to read “Minister for Immigration & Citizenship”.

2. The application filed on 5 February 2007 is dismissed.

3. 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 309 of 2007

SZKCQ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

And

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The proceedings

1. The applicant claims that he is a national of Pakistan born in 1971 in Sialkot in the Punjab and is a Sunni Muslim.  The applicant claims that he belongs to the Pakistan Peoples Party (PPP) which caused conflict with the administration of President General Musharaf’s administration.  The applicant claims that after the military coup in 1999, the PPP was declared the most dangerous legal party by the military government.  Mrs Benazir Bhutto left Pakistan because she feared for her life and the government put her husband, Asif Ali Zardari, in jail on false charges.  The applicant claims he was an active member of an anti-military government party program.

2. The applicant arrived in Australia on 25 May 2006 and made an application for a Protection (Class XA) visa on 20 June 2006.  A delegate of the Minister for Immigration refused to grant a visa on 29 July 2006 and the applicant applied to the Refugee Review Tribunal (“the Tribunal”) to review the delegate’s decision.  The Tribunal affirmed the delegate’s decision on 20 December 2006 and the applicant applied to the Federal Magistrates Court for judicial review of the Tribunal decision (reference 060731291).

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

4. An affidavit of Louise Bernadette Buchanan, affirmed on 6 September 2007, annexes the following two documents:

   a)A copy of the Department of Foreign Affairs and Trade (DFAT) cable sent on behalf of the Tribunal to the Australian High Commission in Islamabad, titled “RRT Information Request: PAK 30908” and dated 3 November 2006.

   b)A copy of DFAT Report 563.

   This affidavit and its annexed documents were read into evidence.

Consideration

1. At the first Court date, the applicant indicated that he wished to participate in the scheme that gives unrepresented applicants in refugee matters independent legal advice.  The applicant was allocated a panel advisor who advised him.  He was granted leave to file an amended application giving complete particulars of each ground of review relied upon.  The applicant complied with this order and filed an amended application containing two unparticularised grounds.

Ground one

1. The Tribunal committed jurisdictional error by its failure to explicitly state in its s424A letter the relevance to the review of the information concerning the applicant’s letters of support such that the use the Tribunal could make of the information as particularised was not self-evident.

1. Although the applicant did not file written submissions, he did accept the invitation to make oral submissions.  These submissions did not refer to ground one of his claim.

2. Mr Kennett, for the first respondent, submits that the obligation under s.424A(1) of the Migration Act 1958 (Cth) (“the Act”) arises in respect of the “information” which the Tribunal considers would be “the reason” or “part of the reason” for affirming the decision under review. However, SZBYR v Minister for Immigration & Citizenship [2007] HCA 26 limits the meaning of the word “information” to material which contradicts or undermines the applicant’s claim to be a person to whom Australia has protection obligations under the Refugees Convention. Importantly, it does not include the Tribunal’s subjective appraisals or thought processes: SZBYR at [18].

3. In the “Invitation to Comment on Information” letter dated 28 November 2006 and forwarded to the applicant, the Tribunal identified information which could be the reason or part of the reason for deciding that the applicant was not entitled to a protection visa.  The applicant was invited to comment on the following information:

   The letters of support provided to the Tribunal by you were referred to the Australian High Commission for authentication and comment.  The following is the High Commission’s reply:

   “A. Mr Rana Naeem Khalid is a nazim (mayor) in District Sialkot, Punjab.  He verified the authenticity of the correspondence signed by him and included with reftel.

   Mr Ghulam Abbas was senior vice-president of the Pakistan People’s Party (PPP) in Punjab and is now Secretary-General of the PPP in Punjab.  He did not have a record of the correspondence attributed to him and therefore could not offer an opinion on its authenticity.

   B. Mr Khalid claimed that as a member of the PPP, and while contesting elections for the Provincial Assembly of Punjab in 2002, he was falsely charged with abduction and other crimes (the case was allegedly lodged by the PML-Q party).  He does not claim to have suffered physical abuse while in custody.  Mr Khalid also claims that a fabricated case was brought against a family member.

   Mr Abbas claimed he had been imprisoned on charges of which he was later cleared.

   C. Mr Khalid claimed the applicant had been harassed and investigated by police.  He also alleged the applicant, during the 2002 election campaign, had been attacked on several occasions by activists of the PML-Q party, with police backing.

   Mr Abbas could not recall the individual in question but offered a general statement that many campaigners and activists have had false charges brought against them.

   This information is relevant because it may be the reason or part of the reason for the Tribunal not to be satisfied that there is a real chance of you suffering harm amounting to persecution in Pakistan for reason of your political opinion.  It may also cause the Tribunal not to be satisfied that the letter from Mr Ghulam Abbas is authentic. (CB 61)

4. Mr Kennett submits that the Tribunal complied with s.424A(1) of the Act by drawing to the applicant’s attention that fact that the letter from Mr Abbas may not have been authentic and could result in an adverse decision in respect of his protection visa application. The remainder of the information was a summary of what Mr Khalid had said to the High Commission which was broadly supportive of the applicant. That information was not, in itself, part of the reason why the Tribunal affirmed the delegate’s decision.

5. Mr Kennett submits that what went against the applicant was that Mr Khalid’s statement did not contain convincing details (on how the applicant had suffered), or support certain aspects of his claims (that he had been gaoled and that he continued to face harm after 2002). I accept Mr Kennett’s submission that these negative issues were not “information” supplied to the Tribunal, but observations which the Tribunal made in the form of “subjective appraisals” or “thought processes”. Section 424A does not oblige the Tribunal to inform the applicant of its tentative views on the significance of Mr Khalid’s statement.

6. The Tribunal decision sets out its reasoning process under the heading “Findings and Reasons”:

   However, the bulk of the applicant’s claims I do not accept.  I give no weight to the letter from Ghulam Abbas, as I am not satisfied that it is authentic.  The applicant’s reply to the Tribunal’s letter does not address the Tribunal’s doubts on that point, at least not specifically. 

   I accept that the letter from Nazim Rana Naeem Khalid is genuine.  However, despite containing some details, it makes no reference to the applicant having been gaoled in the past for his political activity.  Neither did he mention this in response to the High Commission’s questions as to how exactly the applicant suffered as a result of working for the party.  Neither did he mention any threats subsequent to the 2002 election campaign. 

   My conclusion is that the applicant has exaggerated his role and the harassment he suffered as a result. (CB 74-75)

   I am satisfied by the way the Tribunal expressed itself that it is clear that these were subjective appraisals or thought processes as described in SZBYR at [18], and not “information” as within s.424A of the Act. This ground cannot be sustained and should be dismissed.

Ground two

The Tribunal committed jurisdictional error by failing to consider an integer of the applicant’s claim, namely, that he feared persecution “because of the influence of his family in their district”.

1. The applicant said in oral submissions that he feared returning to Pakistan because he would be pursued as a member of the PPP.  He referred to the fact that his father had been one a founding member of the party and that he and other family members were deeply involved in the party.  He said that the letters sent from Pakistan proved his membership of the party.  He also said that in recent times, the situation in Pakistan had rapidly deteriorated as demonstrated by the recent assassination of Mrs Bhutto.

2. Mr Kennett submits in written submissions that the applicant did not make any separate claim to fear harm because of his family history and its association with the PPP.  His claims were based squarely on his own personal connection with the PPP.  The “influence of his family in their district” (raised in ground two of the amended application) appears to be the applicant’s attempt at explaining why the family connection would still result in him suffering harm, even though he no longer held a position in the party.  In oral evidence given before the Tribunal on 3 October 2006, the applicant indicated that his father had been imprisoned by Zia ul-Haq every three months for ten years.  His father passed away in October 1995. 

3. The applicant then gave the following evidence:

   The applicant said that he was then his family’s main bread-winner.  Because of his father’s political involvement, his family life was ruined.  His family wanted to withdraw from politics but people pushed them to continue.  When General Pervez Musharaf took over the government, his family suffered hardship.  At the time of the 2002 elections, the applicant was in charge of the union council of the PPP.  Muslim League Agents came and beat them up.  An army officer threatened him with the same treatment as his father had received.

   The Muslim League kept harassing his family and registered force cases against him.

   During the Bhutto government, he was able to get a few things done of the people.

   The applicant said that he had been detained by the police many times.  In May this year, he had been held for 2 days by the army, having been searched at a check point and found to be in possession of a PPP membership card.  He had heard that 2 cases had been lodged against him since his arrival in Australia.

   I clarified with him that he currently held no position in the party.  I asked, therefore, why anyone should want to harm or harass him.  He said it was because of the influence of his family in their district. (CB 72-73)

4. Mr Kennett submits that to the extent that there was a distinct claim based on the applicant’s family, this was dealt with in the Tribunal’s rejection of the “bulk” of his claims and it observed that the applicant had “exaggerated” the level of harassment:

   My conclusion is that the applicant has exaggerated his role and the harassment he suffered as a result.  I do not accept that he has suffered on-going harassment subsequent to the 2002 elections, as he claims, or that there is a real chance of his suffering any harm amounting to persecution should he return to Pakistan. (CB 75)

5. Mr Kennett submits that the Tribunal has dealt with the applicant’s claim although there was no mention of the family connection.  However, this does not mean that it did not consider that claim.

6. The Tribunal decision refers to the applicant’s father’s involvement in establishing the party and acknowledges the applicant’s own membership. It does not dispute this aspect of the claim. The Tribunal also acknowledges the applicant’s involvement in the 2002 election campaign that he was harassed by his opponent’s during this time. During the hearing, the Tribunal member specifically asked the applicant whether he still retained his membership of the party and the applicant said he did not. The reason that the Tribunal did not accept the claims as set out in the protection visa application is because it believed them to be exaggerated. There is no indication that the Tribunal ignored or overlooked the connection of applicant’s father and family to the PPP, as reference was made to them in the decision. In the circumstances, I am satisfied that applicant’s family’s influence in their district was not omitted in the Tribunal determining the his claimed fear of persecution. I am satisfied that this ground cannot be sustained and should be dismissed.

Conclusion

1. The applicant in these proceedings is a self-represented litigant which places an obligation on this Court to independently consider whether any argument based on the material could have been made out.  Counsel for the first respondent assisted with written and oral submissions.  I am satisfied that none of the grounds identified can be sustained.  Neither is it apparent that any other ground of review exists to suggest that the Tribunal made a jurisdictional error in its decision-making process.  The applicant’s claim should be dismissed.

2. I am satisfied that an order for costs should be made in this matter.  I order that the applicant pay the first respondent’s costs and disbursements of and incidental to this application.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.

Associate: 

Date:  6 March 2008