SZKUL v Minister for Immigration and Citizenship

[2008] FCA 791

FEDERAL COURT OF AUSTRALIA

SZKUL v Minister for Immigration and Citizenship [2008] FCA 791

SZKUL v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 2462 OF 2007

COWDROY J
29 MAY 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2462 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZKUL
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	COWDROY J
DATE OF ORDER:	29 MAY 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The Appellant pay the costs of the First Respondent.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2462 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZKUL
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	COWDROY J
DATE:	29 MAY 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The appellant appeals from the decision of Federal Magistrate Cameron delivered on 5 December 2007 which dismissed an application for judicial review of the decision of the Refugee Review Tribunal (‘the Tribunal’) handed down on 12 June 2007. The Tribunal had affirmed the decision of a delegate of the Minister for Immigration and Citizenship (‘the Minister’) not to grant the appellant a Protection (Class XA) visa (‘the protection visa’).

   BACKGROUND

2. The appellant is a citizen of Pakistan who arrived in Australia on 24 November 2006. On 28 December 2006 the appellant lodged an application for the protection visa with the Department of Immigration and Citizenship. A delegate of the Minister refused the appellant’s application on 23 March 2007. On 11 April 2007 the appellant applied to the Tribunal for a review of that decision.

3. The appellant claimed to have well-founded fear of persecution resulting from his political opinion. The appellant claimed to have been a member of the Pakistan Muslim League (Nawaz Sharif group) (‘the PML(N)’) from 1987 to 2000. The appellant claimed that in 1996 he had been appointed President of the Youth Wing of the PML(N) in Sialkot.

4. The appellant claimed that in or about 1998 the army staged a military coup and seized power from Nawaz Sharif. The appellant claimed that he and other members of the PML(N) protested against the military coup but were arrested by the police. He claimed that he was detained for five days, during which time he was ‘badly beaten’ by the police ‘because I was the leader’. The appellant claimed that the police said that they had ‘orders from the top to arrest and torture me’. The appellant claimed that his cousin brokered a deal with the police to secure his release. The appellant claimed that on his release he was unable to walk properly for five weeks. He also claimed that the police told his cousin that if the appellant was seen in Sialkot again he would be killed.

5. The appellant claimed that after his release he left Sialkot and moved to Lahore. He claimed that he visited the PML(N) headquarters and met with ‘significant Muslim League personalities’. He claimed to have visited Nawaz Sharif and ‘other leaders’ in gaol.

6. The appellant claimed that while he was working in an election campaign for a candidate he became involved in a fight with an ‘opposition group’ that was supported by the Pakistan People’s Party. The appellant claimed that he was arrested and beaten by the police after such altercation. He claimed that he was released only after his candidate won the election.

7. The appellant claimed that in or about 1999 he left Lahore and returned to Sialkot ‘because I was not feeling safe there any longer’. The appellant claimed that he was involved in an election campaign in Sialkot. He claimed that on the day of the election the opposing parties fired gun shots at each other. The appellant claimed that he was shot in his left arm. He claimed that the police charged both groups under ‘Antiterrorist Act’. The appellant claimed that he had been nominated by the opposing party as the person who had fired shots that killed a member of that opposing party.

8. The appellant claimed that he was ‘the target of the opposition’. He claimed that if he were to return to Pakistan ‘they will kill me or Police will investigate my roll [sic] in the firing and may constitute case against me which will result imprisonment’. He also claimed that his parents had been receiving phone calls threatening to kill the appellant if he returned to Pakistan.

   THE TRIBUNAL DECISION

9. The Tribunal found that the appellant provided no evidence to support his claims that he was a member of the PML(N), that he had been President of the Youth Wing of the PML(N) in Sialkot and that he had ever been arrested or shot in the course of his political activities.

10. The Tribunal found that the appellant’s evidence relating to his political activities was ‘extremely vague’. It noted that the appellant provided ‘exceedingly shallow’ answers to its questions and that those answers ‘revealed no knowledge of the Muslim League party platform, objectives, philosophy, or manifesto’. The Tribunal also noted that in the hearing before it the appellant did not claim to have had ‘any significant political role whatsoever’. The Tribunal did not accept that the appellant had any political profile in Pakistan or that he was well known even in his local area as a genuine political activist or supporter of Nawaz Sharif.

11. The Tribunal did not accept the appellant’s claims that he had been charged with murder or terrorism for a Convention Relating to the Status of Refugees 1951 (‘Convention’) reason, nor that he had been arrested, detained, beaten or tortured. The Tribunal found that the appellant was not a credible witness.

12. The Tribunal was not satisfied that there was a real chance that the appellant would be subject to serious harm amounting to persecution if he returned to Pakistan. The Tribunal affirmed the delegate’s decision to refuse to grant the protection visa to the appellant.

    APPLICATION IN THE FEDERAL MAGISTRATES COURT

13. By application filed in the Federal Magistrates Court of Australia on 22 June 2007 and by amended application filed on 3 September 2007 the appellant sought judicial review of the Tribunal’s decision. Federal Magistrate Cameron noted that the grounds in the amended application were ‘not well-expressed’. Cameron FM summarised the grounds as follows:

    1.The Tribunal erred in making its findings of fact.

    2.The Tribunal failed to make a bona fide attempt to exercise its jurisdiction or was biased.

    3.The Tribunal breached s 425 of the Migration Act 1958 (Cth).

14. In considering the first ground of review, the Federal Magistrate found that the Court could not interfere with the factual findings of the Tribunal. Cameron FM concluded that the first ground of review did not establish any jurisdictional error.

15. .The Federal Magistrate was of the view that the ground relating to bias and prejudgment was not established. The Federal Magistrate noted that the only evidence put before the Court was the Tribunal’s decision record and found that there was nothing in such record to suggest that the Tribunal approached its consideration of the review application with a pre-formed view. Cameron FM found that the conduct of the Tribunal hearing, as disclosed by the Tribunal’s decision record, did not lead him to conclude that the Tribunal could reasonably have been perceived as having approached its task other than with an impartial and unprejudiced mind.

16. Cameron FM considered the ground relating to bona fides and noted again that the only evidence before the Court which was relevant to such ground was the Tribunal’s decision record. The Federal Magistrate found that it was apparent from such record that it had considered the information which the appellant had supplied. His Honour found that the evidence before the Court did not demonstrate bad faith on the part of the Tribunal. Accordingly his Honour rejected such ground.

17. The Federal Magistrate also considered the claim that the appellant ‘did not understand many questions’ raised at the Tribunal hearing and that he had been ‘very much confused and depressed’ at the time of the Tribunal hearing. His Honour found that in the absence of any supporting evidence such claim did not suggest a breach of s 425 of the Migration Act 1958 (Cth) (‘the Act’). His Honour also noted that the Tribunal decision did not suggest that the appellant had been disabled from giving evidence or presenting arguments at the hearing before it. His Honour was unable to discern any breach of s 425 of the Act.

    APPEAL TO THIS COURT

18. On 18 December 2007 the appellant filed a notice of appeal in this Court which raised two grounds of appeal as follows:

    1.His Honour Federal Magistrate erred in holding that Refugee Review Tribunal made jurisdictional error when adopted harsh approach to well-founded fear. The Tribunal has failed to carry out the real chance test as required by the law but has resorted to balance of probabilities and other types of tests. The Tribunal misapplied the express and implied meaning of the term ‘Well-founded fear and Refugee from the UN Convention especially in relation to the applicant’s fear of persecution from the Military Government (Pakistan) and his supporters. The RRT failed to assess the cumulative effects of separate incidents and attacks on the Applicant by the Muss raff’s Government and their supporters which the Appellant claimed the Protection Visa Application.

    2.The Appellant claims that the Tribunal took irrelevant matter into account, which constituted jurisdictional error. The identification of wrong issue, asking a wrong questions, ignoring of relevant material in a way that affects the exercise of power are all provided as examples of jurisdictional error. The applicant was denied natural justice and Procedural fairness when the Tribunal ignored to evaluate the Appellant’s in the context of present political situation of Pakistan where hundreds of Nawaj Sharif’s supporters were arrested and tortured by the Mussarraf’s Military government.

    Any errors in the above grounds of appeal are not typographical but existed in the original application.

    FINDINGS

19. The first ground of appeal misstates the findings of the Federal Magistrate. The Federal Magistrate found that the Tribunal made no error in its findings. However, the Court will treat the first ground of appeal as one which claims that the Tribunal failed to carry out ‘the real chance test’. It was also alleged that the Tribunal misapplied the term ‘well-founded fear’ of persecution and failed to assess the cumulative effect of separate incidents and attacks on the appellant.

20. Cameron FM referred to the claim by the appellant that the Tribunal failed to consider the appellant’s evidence concerning his political involvement. The Tribunal’s reasons identify that the Tribunal had considered such evidence but rejected it on the basis of its adverse credibility finding against the appellant. There is no merit in the appellant’s claim.

21. It is apparent from the Tribunal’s findings that the Tribunal was not satisfied that the appellant had sufficient involvement in the PML(N) to attract the attention of the authorities in Pakistan. The Tribunal came to the following conclusion:

    The Tribunal does not accept that the applicant had any political profile whatsoever in Pakistan or was involved in canvassing on behalf of the Muslim League. Nor is the Tribunal satisfied that the applicant is well known even in his local area as a genuine political activist or supporter of Nawaz Sharif, or that he has a well founded fear of serious harm amounting to persecution for a Convention reason on this basis, and the Tribunal does not accept this claim.

22. The above are findings of fact which this Court has no power to review: see NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [10]; Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 391-392; Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others (1986) 162 CLR 24 at 40-42.

23. The Tribunal’s reasons stated the applicable law and the relevant provisions of the Convention. The Tribunal also referred to the need for a ‘well-founded’ fear of persecution for a Convention reason in order for the Tribunal to be satisfied that the appellant was a genuine refugee. However it is open to the Tribunal to reject or refuse to act upon an appellant’s claims of persecution, especially if the evidence does not satisfy the Tribunal that the claims are genuine: see Abebe v Commonwealth of Australia (1999) 162 ALR 1.

24. The Tribunal decision also referred to the tests to be applied. There is no error apparent in the Tribunal’s application of the ‘real chance’ test and the ‘well-founded’ fear test. It follows that no error exists in the decision of the Tribunal as claimed in the first ground of appeal.

25. The second ground of appeal alleges that the Tribunal took into account irrelevant matter and thereby fell into jurisdictional error; identified the wrong issues, asked the wrong questions; and ignored relevant material ‘in a way that affects the exercise of powers’. It was also claimed that the appellant was denied natural justice and procedural fairness.

26. If the Tribunal failed to take into account a relevant consideration which it was bound to take into account in making its decision or asks the wrong question or ignores relevant material, jurisdictional error may result: see Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others (1986) 162 CLR 24. However, in the present circumstance, there is no apparent basis for the appellant’s allegations. No particulars have been provided of such claim and it is not apparent from the Tribunal’s reasons that there was any basis for making such allegations. The Court rejects the second ground of appeal.

27. On 26 May 2008 the appellant filed written submissions in this Court which restate the matters raised in his notice of appeal and make allegations in addition to those made in such notice.

28. Insofar as the written submissions challenge the factual findings of the Tribunal, the Court again notes that those findings cannot be interfered with. The appellant also alleges that ‘the Tribunal asked many irrelevant questions to discredit all of the oral and written evidence of the appellant’. The Court finds that the Tribunal was entitled to ask questions of the appellant at the hearing before it to test the appellant’s claims. In the absence of any particulars the Court can find no apparent error in the conduct of the hearing before the Tribunal. The appellant’s allegation is accordingly not made out.

29. It follows that this appeal must be dismissed.

I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy.

Associate:

Dated:        29 May 2008

Counsel for the Appellant:	The Appellant appeared in person
Solicitor for the First Respondent:	Ms Hanstein

Date of Hearing:	28 May 2008
Date of Judgment:	29 May 2008