SZLBJ v Minister for Immigration
[2008] FMCA 90
•30 January 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLBJ v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 90 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – merits review not available in judicial review proceedings – Tribunal’s discretion did not miscarry when it declined applicant’s request for more time to gather documentary evidence. |
| Migration Act 1958, ss.424A, 474 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 |
| Applicant: | SZLBJ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2180 of 2007 |
| Judgment of: | Cameron FM |
| Hearing date: | 5 December 2007 |
| Date of Last Submission: | 5 December 2007 |
| Delivered at: | Sydney |
| Delivered on: | 30 January 2008 |
REPRESENTATION
The Applicant appeared in person.
| Counsel for the Respondents: | Mr. M. Cleary |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2180 of 2007
| SZLBJ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of Pakistan where, he claims, he was a member of the Pakistan Muslim League Nawaz Sharif Group (“PML-N”). He alleges that while in Pakistan he worked as a campaign coordinator during an election and that this subsequently led to him being threatened and attacked by members of an opposition party. The applicant arrived in Australia on 13 January 2007.
The applicant claims to fear persecution in Pakistan because of his political opinions and activities.
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 2007. 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.
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.
For the reasons which follow, the application will be dismissed.
Background facts
The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4 – 11 of the Tribunal’s decision (Court Book (“CB”) pages 78 – 85).
Protection visa application form
In a statement lodged with the applicant’s protection visa application, he made the following claims:
a)in 2002 he joined the PML-N and worked as a campaign coordinator for Mr Ijaz Shiekh, a former member of the Provincial Assembly;
b)Mr Shiekh lost the election and the applicant gained enemies in the opposition PML-Q group. Many former leaders of the PML-N changed sides to the PML-Q after the election and the applicant spoke out against them;
c)in June 2006 the applicant received threats which he ignored. He “involved his cousins” in the party and continued to speak out against the former leaders, “causing havoc” for them. People began to question their loyalty and boycotted their business;
d)the applicant was warned to stop his activities. He was also threatened with a gun to his head;
e)in July 2006 two PML-Q members attacked the applicant’s home with automatic weapons. They fired on family members for about half an hour. The applicant hid under the staircase and received only lacerations but his two cousins were killed and two of their children injured. The police did not register a case because the perpetrators were PML-Q members. After a few weeks of intense campaigning by the local media, the police finally registered a case but did not arrest the murderers, who escaped and began to harass the applicant and his family again. They rang the applicant and told him that he would be killed if he gave evidence against them; and
f)in September 2006 the applicant’s son was kidnapped while playing in the street. That afternoon the applicant received a phone call saying that his son would be killed if he gave evidence against them. His son was released that afternoon. The applicant then sent his wife and children to his wife’s parents. The applicant paid an agent a large amount of money to arrange his departure.
Tribunal hearing
At the Tribunal hearing the applicant made the following additional claims:
a)he has no children and was only married on 3 September 2006;
b)the applicant officially joined the Sheikh Ijaz group in January 2006 or perhaps in 2002, although he worked for them from 2002 or perhaps 1995 or 1997. He distributed posters, dealt with people and made arrangements for meetings;
c)the applicant variously claimed to be harassed by members of the Muslim League – Noon party and the “Q group”;
d)
after the death of his cousins, the applicant continued to be harassed. About one week after his cousins were killed the
Q group sent some people who fired at his home. Two or three times he had a fight and on one occasion, or perhaps three or four occasions, the applicant was chased by a man with a knife. During one of these attacks, his clothes were torn and his head was injured; and
e)the boy who was kidnapped was his brother’s son.
After the hearing
After the Tribunal hearing, the Tribunal received three documents from the applicant. They were:
a)a document headed “Police Station Kotwali Sialkot Pakistan” reporting on the death of the applicant’s two cousins;
b)a document signed by Naeem Raja, “Secretary”, certifying that the applicant “is a most active member of the Pakistan Muslim League (N)” and noting the death of the applicant’s two cousins; and
c)a document headed “Government of Pakistan National Database and Registration Authority (Ministry of Interior)” showing that the applicant is the father of three children.
The Tribunal’s decision and reasons
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. The Tribunal’s decision was based on the following findings and reasons:
a)the Tribunal found that the applicant was a most unsatisfactory witness, noting that:
i)there were numerous major inconsistencies between the claims the applicant made in his protection visa application and in his oral evidence at the hearing;
ii)documents submitted by the applicant subsequent to the Tribunal hearing which were supposed to corroborate the claims of the applicant in fact did not corroborate any version of the facts supplied by the applicant;
iii)the applicant was evasive and unresponsive in his demeanour;
iv)overall his evidence was extremely vague and confused;
b)the Tribunal found that the applicant provided no satisfactory explanation for the inconsistencies in his evidence. As such, the Tribunal was not satisfied that the applicant told the truth about the circumstances leading up to his departure from Pakistan;
c)the Tribunal was not satisfied that the applicant was, in fact, a member or an activist of any political party in Pakistan, noting that:
i)he was unable to provide basic information about the PML-N, or more significantly, his own activities;
ii)he was unable to explain the inconsistency between the claim in his written statement and his oral evidence as to when he joined;
iii)the Tribunal did not consider that the letter from Naeem Raja submitted by the applicant provided corroboration of the applicant’s claims sufficient to overcome the major problems in his own evidence;
d)the Tribunal did not accept that the applicant was harassed on the basis of his political beliefs, noting that the applicant provided totally inconsistent accounts of the harassment he claimed to have suffered in Pakistan, including:
i)whether his cousins were killed in his family home or in a public place;
ii)whether he was threatened with a gun or chased by a man with a knife; and
iii)whether it was his son who was kidnapped or his nephew;
e)the Tribunal:
i)did not accept that the applicant was politically active in Pakistan;
ii)was not satisfied that he suffered any of the harassment or persecution that he claimed led to his departure from Pakistan;
iii)did not accept the applicant’s cousins were killed for reason of any political activity with which the applicant was connected;
iv)did not accept that the applicant was threatened with knives or a gun;
v)did not accept that his house was shot at;
vi)did not accept his son or nephew were kidnapped or that the applicant had a son;
vii)did not accept the applicant suffered discrimination because of his engagement in political activity in Pakistan; and
viii)did not accept the applicant’s wife and mother are suffering ongoing harassment because of the applicant’s past political activity.
In short, the Tribunal found that the applicant was not a truthful witness.
Proceedings in this Court
The grounds of the amended application were very prolix. I adopt the distillation of those grounds set out in the first respondent’s outline of submissions:
i. The Tribunal did not give any importance to the claims made by the applicant that he was an active worker in the Pakistan Muslim League Nawaz Group and had made enemies as a result of that association (“Ground one”);
ii. The applicant was not given the chance to produce to the Tribunal a copy of a FIR and a letter from his party which contained a statement he would face death on return to his country (“Ground Two”);
iii. The Tribunal did not take the element of well-founded fear into consideration and did not take into consideration the real fear and the harassment under which the applicant has undergone by the authorities (“Ground Three”); and
iv. The Tribunal did not take into account the fact that the applicant was an active member of the political party, and a person of importance as far as the acts of violence against the applicant are concerned (“Ground Four”).
At the hearing the applicant was also granted leave to raise an additional issue which he mentioned for the first time in his submissions in reply, namely that the interpreter services available to him at the Tribunal hearing were inadequate.
Dealing with each of these grounds in turn:
The Tribunal did not give any importance to the claims made by the applicant that he was an active worker in the Pakistan Muslim League Nawaz Group and had made enemies as a result of that association
The amended application expressed this ground in terms of the applicant’s evidence not having been given any importance by the Tribunal, which really means that the claims revealed by that evidence were not considered.
Although the applicant said in his statement lodged with his protection visa application form that he was a member of the Pakistan Muslim League Nawaz Sharif group, he changed his claim at the Tribunal hearing to say that he was a member of the Ijaz group. In fact, his evidence on this issue appears to have been very unclear and self-contradictory. However, the decision record is clear that the inconsistency was put to him by the Tribunal and he disclaimed membership of the Pakistan Muslim League Nawaz Sharif group, instead claiming to have been a member of the Ijaz group.
Notwithstanding his evidence and given the confusing nature of what the applicant said to the Tribunal on this subject, the Tribunal proceeded on the basis that the applicant was, in fact, a member of the Nawaz Sharif group saying this:
The applicant’s evidence about the name of the party of which he was a member, when he joined the party and what work he did for the party was vague and confused. Giving the most generous interpretation to the applicant’s evidence, I will proceed on the basis that he claims to be a member of the PML-N or PML-Noon, and that when he refers to the Ijaz group he means that this was the name of the PML-N leader in Sialkot. (CB 87)
Having made that characterisation of the applicant’s allegations the Tribunal proceeded to try to understand what it was the applicant was alleging in relation to that involvement. The outcome of that process was that the Tribunal was not satisfied that the applicant was a member or activist in any Pakistani political party at all.
To the extent that an involvement by the applicant in the Pakistan Muslim League Nawaz Sharif group can be discerned from the information he supplied with his protection visa application form and in his evidence to the Tribunal, it was considered. What weight was to be given to that evidence and whether it was to be accepted was a matter for the Tribunal. In this case, the Tribunal rejected the political involvement in Pakistan which the applicant claimed to have had. This was a conclusion which was open to it on the evidence.
Consequently, not only is this ground not made out on the facts, it invites the Court to revisit the Tribunal’s consideration of the evidence and the merits of the applicant’s claim which it cannot do.
The applicant was not given the chance to produce to the Tribunal a copy of a FIR and a letter from his party which contained a statement he would face death on return to his country
In the amended application the applicant says this:
The applicant is attaching a copy of the FIR duly translated in to English, the applicant is also attaching the letter from his party, wherein it is written in black and white that the applicant shall be done to death if he returns back to the country. Although the applicant prior to the hearing requested the RRT, that the applicant be given a chance to produce the same, but the applicant was not given the chance.
At the hearing in this Court the applicant conceded that at the Tribunal hearing he had asked to be able to submit further documents to the Tribunal, the Tribunal said that he could do so, he then proceeded to send through the documents to the Tribunal which subsequently handed down its decision.
At CB 65 there is reproduced a police report purportedly relating to the murder of the applicant’s cousins. At CB 66 there is reproduced a letter purportedly describing the applicant’s involvement in the Pakistan Muslim League (N). Both these documents are referred to by the Tribunal in its decision record at CB 84. It would appear that the documents the applicant now claims not to have been able to send to the Tribunal were, in fact, sent by him to the Tribunal and received by it.
However, in the event that this conclusion is incorrect, it could not be said that the applicant was not given an opportunity to supply documents to the Tribunal. The chronology emerging from the documents contained in the Court Book is as follows:
a)by a facsimile dated 8 May 2007 the applicant wrote to the Tribunal saying:
It is therefore requested I m Mr [SZLBJ] my hearing date in RRT 15-05-2007 According to my brigging protection clause XA. Last few days I was trying to contact my wife about papers which I want to send your court but she was tell me that Mr [B] and Mr [P] spotter of Muslim Legal (Q) and some unknown persons attack on my home 04-03-2007, Evening 07:00 pm and threat her and my kids and asking about me. My wife trying to launch FIR against Mr. [B] and Mr. [P] but she is unable to lunch the FIR due to the poor financial position so its my request to Tribunal officer Miss Dee Khubchandani to give me more to putt my important documents which is very necessary for my RRT case,. At the movement I am unable to submit my all documents because I am not receive all the documents that are necessary for my case. [sic] (CB 57)
b)on 15 May 2007 the Tribunal hearing took place;
c)on 17 May 2007 the Tribunal sent a s.424A(1) notice to the applicant;
d)on 18 May 2007, judging by the facsimile record notations at the top and bottom of the respective pages, the Tribunal received the police report and the political letter referred to above at [23];
e)on 13 June 2007 the applicant wrote to the Tribunal saying:
In reference to your letter 17/5/07/ I was totally blank and nervous during the interview. I couldn’t explain facts of my claim during the interview. Please allow me another opportunity to explain my claim properly before the decision. (CB 69)
f)on 14 June 2007 the Tribunal wrote to the applicant advising him that its decision would be handed down on 3 July 2007; and
g)on 3 July 2007 the Tribunal handed down its decision.
The Tribunal’s decision record discloses that the applicant was advised, in response to his facsimile of 8 May 2007, that he should attend the hearing and make his request for further time to provide documents at the Tribunal hearing.
At the Tribunal hearing itself, the applicant again asked for more time. The relevant exchange is described by the Tribunal at CB 83 in the following terms:
I asked the applicant whether there was anything he wished to add and he said that if he was given further time he would produce documents to support his claims. I informed him that it was doubtful that I would attach much weight to any documents he might provide. There was evidence that it was easy to obtain fraudulent documents from Pakistan, and I could not understand why he had not provided the documents at an earlier stage, given his claim that they had been in existence prior to his departure from Pakistan, and at the time of the various events in question. I explained that I would write him a letter inviting him to comment on the various inconsistencies between his oral evidence and his written claims, and that he could provide the documents during the period allowed to respond to the letter.
Consequently, it is factually incorrect to say that the applicant was not given the chance to produce the documents he said he wished to produce.
Additionally, by this ground the applicant appears to be submitting that by not delaying its decision on his application for review the Tribunal erred. Another way of characterising the conduct in question would be that the Tribunal erred by failing to exercise its discretion to delay its decision and thereby to allow the applicant more time to produce the documents he said he wished to supply. However, the reasons given by the Tribunal, referred to above at [26], demonstrate that the Tribunal’s discretion did not miscarry.
The Tribunal did not take the element of well-founded fear into consideration and did not take into consideration the real fear and the harassment under which the applicant has undergone by the authorities
The Tribunal discussed the relevant law at the outset of its decision without apparent error. Moreover, the Tribunal’s decision record reveals that it considered the applicant’s alleged subjective fear together with the circumstances alleged to have given rise to it. This asserted ground of review cannot be made out on the facts.
The Tribunal did not take into account the fact that the applicant was an active member of the political party, and a person of importance as far as the acts of violence against the applicant are concerned
For the reasons given in respect of the first asserted ground of review, this ground is not made out.
Inadequate translation services at Tribunal hearing
At the hearing of his application the applicant was granted leave to raise a further asserted ground of review based on his allegation made in submissions that he could not understand the interpreter at the Tribunal hearing. He also said that the interpreter had been using Urdu while the applicant had been using Punjabi and his understanding of what was being said was very limited. Even so, the applicant conceded that he was well able to understand the Court appointed interpreter who was communicating with him in Urdu. Having been granted leave to raise the additional ground the applicant then declined to give evidence in support of it, notwithstanding that he was advised by the Court that this would leave the allegation unsupported by evidence. In submissions, counsel for the Minister directed the Court’s attention to the applicant’s “Response to Hearing Invitation” (CB 56) where the applicant is recorded as having requesting an Urdu interpreter for the Tribunal hearing, the “RRT Hearing Record” (CB 58) where it is recorded that an Urdu interpreter attended the Tribunal hearing, the facsimile from the applicant to the Tribunal dated 13 June 2007 in which no complaint about the interpreter’s services was provided, and the following passage from the Tribunal’s decision record:
The applicant appeared before the Tribunal on 15 May 2007 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages. I noted that initially he had stated in the protection visa application that he required a Punjabi interpreter, but he said that he spoke Urdu equally well and was happy with an Urdu interpreter. (CB 79)
In the circumstances, the only conclusion which can be reached is that this ground is completely unmeritorious.
Conclusion
Jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 30 January 2008
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