SZKKD v Minister for Immigration & Anor - [2007] FMCA 1490

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZKKD v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 1490

MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming a decision of a delegate of the Minister refusing to grant a protection visa – applicant is a citizen of Pakistan claiming fear of persecution for reasons due to being Kashmiri and his political opinion – no reviewable error.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.424A, 425, 474(2)

Applicant:

SZKKD

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 980 of 2007

Judgment of:

Scarlett FM

Hearing date:

20 August 2007

Date of Last Submission:

20 August 2007

Delivered at:

Sydney

Delivered on:

3 September 2007

REPRESENTATION

The Applicant:

Appeared in person

Solicitors for the Applicant:

Nil

Counsel for the Respondents:

Mr Markus

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application is dismissed.
The applicant is to pay the first respondent’s costs fixed in the sum of $5,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 980 of 2007

SZKKD

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Application

This is an application for review of a decision of the Refugee Review Tribunal (“the Tribunal”) that was signed on 5^th February and handed down on 27^th February 2007. The Tribunal affirmed the decision of a delegate of the Minister not to grant the applicant a protection (Class XA) visa. The applicant by means of an application and an affidavit filed on 23^rd March 2007 seeks judicial review of that decision.

In particular, he seeks the following orders:
a)the applicant be allowed to remain in Australia until decision;
b)the order under application may be quashed;
c)the costs of the proceedings be allowed to the applicant.
The background to this matter is that the applicant has been assessed by the Tribunal as a citizen of Pakistan, and his claims have been assessed against Pakistan as his country of reference. He arrived in Australia on 5^th April 2006 and applied to what was then the Department of Immigration & Multicultural Affairs for a protection (Class XA) visa on 2^nd May 2006. His application for a visa was refused by a delegate of the Minister on 1^st August 2006, and on

29^th August 2006
the applicant applied to the Refugee Review Tribunal for review of that decision.
The applicant submitted to the Tribunal for its consideration a statement dated 24^th August 2006 which is a one and a half page typed document. In his submission to the Tribunal, the applicant submitted:
That the case of the applicant was not assessed as per the refugee law definition, the well founded fear of the applicant was not assessed by the delegate of the Minister, rather the history of the Jammu and Kashmir has been written. Jammu and Kashmir dispute is very well known all over the world. As such the discussion over the Kashmir issue was unwarranted by the officials of the DIMIA. That it is incorrect to suggest that the Kashmiris are Pakistani nationals as per the DIMIA officials are concerned. The DIMIA officials are unaware of the fact that the United Nations resolutions are clear on the point that until and unless the fate of the Kashmiris is not settled by the right of self determination by the United Nations, the status quo shall remain in force for the peoples of Jammu and Kashmir.[1]
[1] See Court Book at 54
In his submissions the applicant went on to suggest that the delegate who made the decision was not versed with the Kashmiri issue, and referred to various resolutions by the United Nations. He went on to say:
The applicant has a fear based on the views and is well founded due to the political opinion to stand for the independence of the State of Jammu and Kashmir. The applicant has established the real chance of the persecution due to the applicant’s views on the Kashmir. The DIMIA officials only discussed the background of Kashmir, but have not taken the actual and factual position of the Kashmir.[2]
[2] ibid
The Tribunal invited the applicant to attend a hearing. The hearing took place at 9:00 am on 13^th December 2006. The applicant submitted his passport to the Tribunal for consideration. A copy of the relevant pages of the passport can be found at pages 79 through to 82 of the Court Book. The passport is a passport issued by the Government of Pakistan and describes the applicant’s national status as “citizen of Pakistan” in both English and French.
The applicant attended the Tribunal hearing and gave evidence.

The Tribunal handed down its decision on 27^th February 2007. A copy of the Tribunal decision record can be found at pages 86 through to 99 of the Court Book. In the decision the Tribunal member sets out the applicant’s claims and evidence under the headings, “Information given to the Department by the applicant”, “Information given to the Tribunal by the applicant”, “Invitation to hearing”, “Evidence at hearing” and “Independent country information”. The Tribunal summarised the applicant’s claims in his application for a protection visa, and referred to the applicant’s submission to the Tribunal which was lodged when he filed his application for review. A summary of that submission is set out on pages 90 to 91 of the Court Book.
The Tribunal noted that the applicant submitted further documents on

16^th November 2006
and set out what those documents were.

At pages 92 and 93 of the Court Book the Tribunal summarised the applicant’s evidence. The Tribunal said:
The applicant gave evidence that he was born in Sialkot in 1976 and was 30 years old. He has brothers and sisters living in Pakistan and one brother who is currently in Australia. He is not married. He finished school in Pakistan in 1994. He completed a Diploma in Civil Engineering in 1997. After he completed his civil engineering qualifications he worked as a casual job site supervisor in Sialkot. He first arrived in Australia on 5 April 2006 and applied for a protection visa about three weeks after his arrival. I asked the applicant why he fears returning to Pakistan. He claimed his life would be in danger because he was attached to a political organisation called the Jammu and Kashmir Liberation League, JKLL, which had some differing views about Jammu and Kashmir.[3]
[3] Court Book at 92
The Tribunal asked the applicant a number of questions about his evidence and he told the Tribunal that he had come under adverse notice from Pakistani intelligence agents, having first been arrested in 1998. He claimed to have been slapped and kicked and held in custody for a few days. He described having been detained again in 1999 and was detained for a period of seven days. The applicant also claimed that in 2005 ISI officers came to his house where they slapped him and he claimed that he was tortured in ISI headquarters for 32 to 40 days. After that incident his brother helped him leave Pakistan and organised a visa with the help of his father.
The Tribunal put to the applicant that he was the holder of a Pakistani passport and he did not have to return to Sialkot and could live in one of the other large cities of Pakistan such as Lahore, Karachi or Islamabad. The Tribunal reported the applicant’s response as that he would have to keep in touch with his family and would have to visit Kashmir and would be at risk if he did so. The Tribunal again put to the applicant that there was no reason why he could not live elsewhere in Pakistan if he did not wish to return to Sialkot, but the applicant claimed that if he got in touch with his family the ISI would know his whereabouts and could harm him. The applicant told the Tribunal that he feared that if he returned to Pakistan he would be detained and beaten by the ISI and he did not want to see his parents harmed or upset.
The Tribunal referred to independent country information about Kashmir and the Jammu and Kashmir Liberation League, and the independent country information is set out on pages 94 through to 97 of the Court Book. The Tribunal’s findings and reasons are set out on pages 97 through to 99. The Tribunal addressed the question of the applicant’s nationality in this way:
On the question of nationality, the applicant submits that it is incorrect to suggest that Kashmiris are Pakistani nationals.

The documents provided to the Tribunal by the applicant on 16 November 2006 show that the applicant’s father was a migrant from Jammu and Kashmir who moved to, and resided in, the Sialkot district of Pakistan after partition of India and Pakistan in 1947. The country information indicates that subjects of the State of Jammu and Kashmir who migrated to Pakistan, as the applicant’s father did, are deemed to be citizens of Pakistan (DFAT cable IS3051, 12 February 1998). As the son of a Pakistani father, the applicant will automatically be regarded as a citizen of Pakistan (DFAT CIR123-01, 23 April 2001). Further, the applicant had a Pakistani passport which he gave to the Tribunal at hearing. I consider from the information given to the Tribunal that it is clear that the applicant is the son of migrants from Jammu and Kashmir who settled in Pakistan, and I find that he is a Pakistani citizen.[4]
[4] Court Book at 97
The Tribunal noted the applicant’s claims that he feared harm because he was an active member of the Jammu and Kashmir Liberation League, the JKLL, which supports an independent and self-determining State of Jammu and Kashmir. He claims that the Government of Pakistan does not support such an independent state, and claimed that he had been mistreated by security authorities on a number of occasions before he left Pakistan. He claimed that he feared harm for reasons of his political opinion and Kashmiri ethnicity if he were to return to Pakistan. The Tribunal found that the claims that the applicant made at the hearing represented his claims for refugee status.

The Tribunal noted:
I have not attached any significance to inconsistencies of detail between the applicant’s original written claims and his evidence at hearing.[5]
The Tribunal accepted that the applicant was born and grew up in Sialkot. Sialkot is a large Pakistani city located in Punjab Province, near the border of Azad Jammu Kashmir (AJK), which the Tribunal described as Pakistani controlled Kashmir. The Tribunal did not, however, accept the applicant’s evidence that he is either an office bearer or a member of the Jammu and Kashmir Liberation League. The Tribunal did not accept that he joined the student wing of that organisation at school, or that he used to lecture on independence.

The Tribunal found the applicant to have little knowledge of the organisation of the JKLL and, apart from being aware of some well published events, did not have the knowledge and familiarity with the details of the organisation which the Tribunal would have expected of an office bearer or member.
[5] Court Book at 98
The Tribunal did accept, however, that the applicant may have been a supporter of the JKLL and its aims, and that he may have taken part in some meetings or protest activities in Sialkot, but the Tribunal did not accept the claims made by the applicant that he had been detained and mistreated by the ISI as claimed by him in 1998, 1999 and 2005.

The Tribunal did accept that some members of the independence groups in Azad Jammu Kashmir had been subject to arrest and detention and that members of the Kashmiri independence groups operating in that territory may have a fear of the military and the ISI due to their control and operations in that area. However, the country information indicates that generally members of the JKLL have been able to openly participate in the political process and engage in public discussions on the Kashmir issue, both in Azad Kashmir and in Pakistan, without adverse consequences.
The Tribunal went on to consider the situation for the applicant if he were to return to Pakistan as a person who was a supporter of the JKLL and as a person with pro-independence opinions on the Kashmir issue. The Tribunal considered that the applicant could return to Sialkot and not be at any risk of harm for reasons of his support of the JKLL, and an independent and autonomous Kashmir. The Tribunal referred to country information, saying:
The country information makes it clear that there are large Kashmiri populations throughout Pakistan and that there are a number of groups which advocate for independence for Kashmir. The JKLL is a group which is quite small in size and influence and is peaceful and moderate in its views. It has participated in the political process in Azad Jammu Kashmir, fielded candidates in the elections, and has been involved in the political debate in Pakistan without any serious reported adverse consequences for its members. I do not accept that the applicant will be at any risk of harm if he returns to Pakistan for reasons of his support for the League or because he has pro-independence views.[6]
[6] Court Book at 99
The Tribunal noted the applicant’s written claims about having suffered discrimination when he was at school and college because of his Kashmiri ethnicity, and found that there was no evidence that Kashmiris had been subjected to serious discrimination in Pakistan which would amount to persecution, and the Tribunal did not accept that claim. The Tribunal did not accept that if the applicant returned to Pakistan at the time of the hearing or in the foreseeable future he would face a real chance of persecution for reasons of his support for the Jammu and Kashmir Liberation League, or his support for an independent State of Jammu and Kashmir, or his Kashmiri ethnicity.

The Tribunal was not satisfied that the applicant had a well founded fear of persecution for any convention based reason, and affirmed the decision not to grant the applicant a protection (Class XA) visa.
In his application filed on 23^rd March 2007 the applicant set out three grounds for review:
a)that the RRT failed to determine the nationality of the applicant, hence the RRT has committed the jurisdictional error. The failure to determine the nationality has resulted in a legal error as well.
b)that the RRT did not follow proper procedure in accordance with the law to consider the applicant’s persecution as the applicant is a stateless person.
c)that the RRT has acted beyond its jurisdiction by not taking into account the United Nations resolutions as the applicant is a Kashmiri and the dispute of Jammu and Kashmir has not been resolved as yet.
The applicant filed an amended application which has been characterised not unreasonably by Mr Markus, who appeared for the Minister, as more submissions than an application pleading jurisdictional error. In my opinion it is both, and I will consider it both as an amended application and as a submission going to the applicant’s case.
The applicant submitted:
The most important question in this application arises as to the nationality of the applicant since the applicant’s nationality has been questioned to the effect of whether the applicant is a Pakistani person who is advocating the Kashmiri cause, or a person who is a bona fide Kashmiri. This question was not resolved by the RRT or by the first respondent. In the first instance the appellant (meaning the applicant) shall quote the constitution of Azad Jammu and Kashmir.
The applicant then went on to refer to the Interim Constitution Act of 1974 and went on to refer to the fact that he had attached the State Subject Certificate issued by the Azad Jammu and Kashmir Government. He claimed that the Government of Azad Jammu and Kashmir is not internationally recognised. As such the State Government does not issue any passports to their subjects. The main evidence, he submitted, was the State Subject Certificate.

While issuing the Pakistani passport to the State subject, this was not verified by either of the officials of the Minister or by the RRT. The failure to investigate these matters, the applicant claimed, has resulted in a grave miscarriage of justice because the respondents have not acted fairly into the question which has resulted in a jurisdictional error while deciding the matter of the applicant.
The applicant then went on to quote a number of documents which he claimed were not looked into properly, as they should have been.

The applicant also referred to the fact that there is no single document issued by the Government of Pakistan except the passport, and that the State of Azad Jammu and Kashmir is not recognised by the international world and as such the peoples of Azad Jammu and Kashmir are issued with a Pakistani passport for travelling purposes. The applicant submitted also that the other relevant factor was that a Pakistani national cannot take the membership of any Kashmiri political party, although he claimed that Pakistan is representing the Kashmir case for its own purposes.
The applicant further submitted that the applicant was not given a fair chance to be heard; that he had the evidence which he attached to the file but the evidence was not given any importance, rather it was brushed aside and the Tribunal believed the material which was absolutely baseless. He went on to submit that although the Refugee Review Tribunal is not a judicial platform, it was the duty of the Tribunal to take information from independent sources, but not getting information from people who were employed by the Government of Pakistan, and he claimed that this was highly objectionable to rely on that information.
The applicant also claimed that the Refugee Review Tribunal was not able to give reasoning that the applicant was not a national of Azad Jammu Kashmir. He claimed he had produced a bundle of evidence but the Tribunal did not consider any of the material which the applicant had produced. He claimed that the Refugee Review Tribunal was only interested to go through material; that there was no persecution of the applicant. He then went on to claim that he had been kidnapped by the ISI and other intelligence authorities, and that military intelligence was controlling all the affairs of Kashmir. He claimed that the acts of persecution referred to did happen and referred to publications about Kashmir, including a book entitled, “The partition of India and Kashmir problem” written by Md Anwar Khan, volume 2, published by Rivington House, 82 Great Eastern Street, London.
The applicant went on to say that his life was in grave danger of being killed, but in that direction that the Refugee Review Tribunal made no comments which meant that the Refugee Review Tribunal had been unable to answer the issues which were raised but were never answered. He submitted:
This is a clear violation of the natural justice. This also amounts to legal error coupled with jurisdictional errors.
Unfortunately the applicant did not serve a copy of this document on the solicitors for the Minister, even though it had been filed on

13^th June 2007
. Consequently the written submissions on behalf of the Minister, which were filed on 13^th August 2007, did not refer to that document but only to his original application. However, Mr Markus, solicitor, on behalf of the Minister was given a copy of the document by the Court at the hearing and after a short adjournment addressed the Court orally.
Dealing with the applicant’s grounds in the original application, the solicitor for the Minister submitted that the Tribunal did not fail to determine the nationality of the applicant, but expressly considered his claim that Kashmiris are not Pakistani nationals and rejected that claim based on the applicant’s Pakistani passport, as well as independent information regarding citizenship rights of Kashmiri migrants in Pakistan. He submitted that the applicant appeared to be disputing the factual finding that the applicant is a Pakistani citizen.

As to the breach referred to in ground 2, Mr Markus submitted that the applicant had not provided any particulars of it. He submitted that no error had been demonstrated, and certainly no breach of the requirements of Division 4 of Part 7 of the Migration Act. Again he was of the view that the second ground also related to a challenge to the Tribunal’s finding of fact regarding the applicant’s nationality.
Ground 3, he submitted, appeared to assert a failure by the Tribunal to take into account relevant material, that is United Nations resolutions regarding the dispute in Jammu and Kashmir. No particulars were provided of those resolutions, or of their relevance, nor were those particulars provided to the Tribunal apart from asserting that the United Nations supports the right of self determination for Kashmiris, which the Tribunal noted in its decision at page 90.
As to the amended application, Mr Markus submitted that the principal error which the applicant claimed was an alleged error in finding that the applicant is a citizen of Pakistan. He submitted that this was a finding of fact and noted the findings and reasons set out at page 97 of the Court Book. He submitted that the applicant was in fact challenging a factual finding made by the Tribunal, but noted that the Tribunal based its finding on evidence, particularly the fact that the applicant provided a Pakistani passport and that the passport alone was a sufficient basis for the findings made by the Tribunal that the applicant is a Pakistani citizen. He also referred to independent country evidence being questions about Pakistani nationality for Kashmiris and answers that appeared at pages 248 and 249 of the Court Book. He submitted that it was not to the point that the applicant regards himself as a Kashmiri.
As to the claim that the applicant asserted that he was stateless, Mr Markus submitted that the applicant’s claims needed to be assessed against Pakistan. He went on to submit that the balance of the application took issue with the findings of fact made by the Tribunal. He again referred to the applicant’s grounds in his original allegation. He noted in the amended application that the applicant claimed not to have been given a fair chance to be heard, but in effect the applicant is complaining that the Tribunal made factual findings that were adverse to his case. He referred to the applicant’s complaints that the Tribunal ignored documentary evidence, but he noted that the Tribunal had relied on independent country information that was not objectionable. The Tribunal accepted that the applicant supported an independent Kashmir, but did not accept the applicant was a member or an office bearer of the JKLL and the Tribunal had noted that the applicant could obtain a Pakistani passport and leave Pakistan without restriction. These, he submitted, were all findings of fact and not subject to challenge. What the applicant ultimately complained about, he submitted, was that in his view he is not a citizen of Pakistan but in his submission Pakistan remained the relevant country of reference.
In reply the applicant said that there were two major problems.

His parents had migrated to Pakistan from Indian controlled Kashmir. They were staying in Kashmir as Muslims in part of Kashmir that was under the control of the Indian Government, and secondly that they wanted to have an independent state. He told the Court that all people knew what kind of atrocities were being committed against Muslims in Kashmir in that part controlled by India. He said that 100,000 people had been killed and many people had migrated to Pakistan. He said that they wanted an independent Kashmir and was not of the view that the so-called independent Kashmir on the Pakistani side was in fact independent at all.
It is of course a fact, as I advised the applicant at the commencement of the hearing, that the Court does not reconsider factual matters. So long as there is evidence upon which the Court can be satisfied that would support a finding of fact then the question of factual matters remains the province of the Refugee Review Tribunal. The Court can only interfere to set aside a decision of the Tribunal if the Court is satisfied that the decision was affected by jurisdictional error.
The first ground that the Tribunal failed to determine the nationality of the applicant must fail. The Tribunal did determine the nationality of the applicant. The Tribunal found that he was a national of Pakistan and noted that the applicant held a Pakistani passport. The Tribunal also noted the independent country information that showed that citizens of the States of Jammu and Kashmir who migrated to Pakistan, like the applicant’s father, are deemed to be citizens of Pakistan and the applicant, as the son of a Pakistani father, will automatically be regarded as a citizen of Pakistan. The Tribunal may not have determined the applicant’s nationality to the satisfaction of the applicant, but it did determine the question of the applicant’s nationality.
There is no evidence before the Court that the Tribunal did not follow proper procedures in considering the applicant’s persecution.

The applicant claims to be stateless. The Tribunal found on the basis of the evidence before it that the applicant is a national of Pakistan. The applicant did not set out what procedures had not been followed. This is not a case where there is a breach of s.424A of the Migration Act 1958 (Cth) (“the Act”). I am not of the view that there is any breach of s.425. The Tribunal wrote to the applicant inviting him to attend a hearing. The applicant attended a hearing and gave evidence. The Tribunal finding did not come as a surprise. I note from the delegate’s decision that the very question of the applicant’s nationality was a matter that was decided by the delegate at page 46 of the Court Book where the Tribunal found that the applicant was a citizen of Pakistan. There is no failure by the Tribunal to render procedural fairness to the applicant.
The applicant’s claim that the Tribunal acted beyond its jurisdiction by not taking United Nations resolutions regarding Jammu and Kashmir into account cannot be substantiated. I am satisfied that the Tribunal did consider that material and referred to it as part of the applicant’s claims at page 90 of the Court Book.
Those three grounds must fail.
As to the grounds in the amended application, which is also a statement of submissions, the applicant raised the question of the determination of his nationality and that clearly is a matter that the Tribunal considered and made its finding based on evidence. As to the claim that the Tribunal did not look at documents properly, that has not been made out and the Tribunal decision indicates that the Tribunal did consider documents provided by the applicant, and it refers to them at pages 91 and 92. There is no evidence to show that the Tribunal misread the evidence provided by the applicant. In my view the evidence shows the Tribunal did consider the material and made decisions on the material which were supported by the evidence.
The applicant has claimed that he was not given a fair chance to be heard, but there is no evidence of that. He attended the hearing, he gave evidence and the evidence appears from the Tribunal decision to have been adequately summarised. The applicant claims that his evidence was not given any importance but was brushed aside, whereas the Tribunal considered other material which the applicant considered to be baseless, objectionable or false. It is a matter for the Tribunal to decide what weight it gives to particular evidence. What the applicant is in effect doing is cavilling with the Tribunal’s factual decisions.
As to the applicant’s claim that the Tribunal had not been able to give reasoning that the applicant was not a national of Azad Jammu Kashmir, it is not of course a requirement that the Tribunal should provide evidence going to why it does not accept an applicant’s claim. In this case the Tribunal did consider the question of the applicant’s citizenship and made its finding that the applicant was a citizen of Pakistan based on evidence which would allow such a finding.
The balance of the submission claims a denial of natural justice and a legal error, coupled with jurisdictional errors, but is in my view a submission taking issue with the Tribunal’s factual findings.

No jurisdictional error appears in any of the applicant’s written or oral submissions.
As to the fact that the applicant is not legally represented, I have taken that into account and I have read through the Tribunal decision and the supporting material, but I am unable to discern any arguable case of any jurisdictional error. In my view there is no jurisdictional error and the Tribunal decision is a privative clause decision as defined by s.474(2) of the Act. Privative clause decisions are not subject to orders in the nature of certiorari or mandamus, they are final and conclusive.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: S.Polley

Date: