SZLBT v Minister for Immigration
[2007] FMCA 1702
•11 October 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLBT v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1702 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of Refugee Review Tribunal affirming decision not to grant protection visa – citizen of Pakistan claiming fear of persecution for reasons of his political activities – whether Tribunal failed to comply with Migration Act 1958 (Cth) s.424A – no arguable case for jurisdictional error. PRACTICE & PROCEDURE – Show Cause application – no arguable case for the relief claimed. |
| Migration Act 1958 (Cth) ss.424A, 425, 474, 477, 486A Federal Magistrates Court Rules 2001 Rule 44.12 |
| SZGSI v Minister for Immigration and Citizenship [2007] FCAFC 110 distinguished. SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006] 150 FCR 214; [2006] FCAFC 2 distinguished. SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 distinguished. Bodruddaza v Minister for Immigration & Multicultural Affairs [2007] HCA 14 distinguished. SZKKR v Minister for Immigration & Anor [2007] FMCA 650 referred to. Minister for Immigration and Citizenship v SZKKC [2007] FCAFC 105 followed. |
| Applicant: | SZLBT |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 2227 of 2007 |
| Judgment of: | Scarlett FM |
| Hearing date: | 27 September 2007 |
| Date of last submission: | 27 September 2007 |
| Delivered at: | Sydney |
| Delivered on: | 11 October 2007 |
REPRESENTATION
| Applicant: | In Person |
| Solicitor for the Respondent: | Ms Baggett |
| Solicitors for the Respondent: | DLA Phillips Fox |
ORDERS
The Application is dismissed under Rule 44.12 as not raising an arguable case for relief.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $2,500.00.
I will allow three (3) months to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2227 of 2007
| SZLBT |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
The Applicant, who is a citizen of Pakistan, applies to the Court for review of a decision of the Refugee Review Tribunal signed on 8th June 2006, and handed down on 29th June 2006 affirming the decision of the Delegate of the Minister not to grant him a Protection (Class XA) visa.
The First Respondent Minister for Immigration & Citizenship asks the Court to dismiss the application on the basis that the application does not disclose any reasonable cause of action.
It is noted that the application appears to have been commenced outside the time limit prescribed by s.477(1) of the Migration Act as the decision was handed down on 29th June 2006, but the application to this Court was not made until 19th July 2007. However, the First Respondent Minister, although noting that no extension of time is sought, concedes that there is no evidence before the Court that the Applicant received actual notification of the decision within the meaning of s.477.
The substance of the Minister's application is that the Applicant has raised no arguable case.
The Applicant, in his application, seeks three orders:
i)An order that the decision by the Refugee Review Tribunal is not valid and has no effect;
ii)The Applicant is not removed from Australia until a decision is made; and
iii)The matter is remitted to the RRT for further consideration according to law.
Grounds of Review
He relies on two grounds:
a)The RRT breached procedural fairness in s.424A of the Migration Act.
b)The application is late but it is not barred by the act for judicial review in the Federal Magistrates Court within the application of High Court decision in the matter of Bodruddaza v Minister for Immigration & Multicultural Affairs[1]
[1] [2007] HCA 14 (18 April 2007)
In his affidavit in support the Applicant claims:
The decision by the RRT falls within the application of High Court decision in the matter of SAAP where the Court made new ruling about the definition of s.424A of the Migration Act. Although the matter is late there are restrictions by migration Act 1958 in bringing matters in Court late, I rely on Bodruddaza v Minister for Immigration & Multicultural Affairs [2007] HCA 14.
Background
The background to this matter is that the Applicant is a citizen of Pakistan who arrived in Australia on 29th August 2005, and applied for a Protection (Class XA) visa on 25th November in that year. A Delegate of the Minister refused his application for a visa on 17th February 2006, and on 22nd March in that year the Applicant applied to the Tribunal for review of the Delegate's decision.
Application for Review by the Refugee Review Tribunal
The Applicant attended a hearing of the Tribunal and gave oral evidence on 24th May 2006. The Tribunal signed its decision on 8th June 2006, and handed it down on 29th June 2006.
The Applicant was represented by a solicitor who had provided to the Tribunal with application a two-page letter[2], and a statutory declaration by the Applicant.[3] The Tribunal handed down its decision on 29th June 2006, and a copy of the Tribunal decision record appears at pages 103 to 117 of the Court Book.
[2] See Court Book at pages 75 and 76
[3] See Court Book at pages 77 to 79
The Tribunal considered the Applicant's written evidence and his oral evidence to the Tribunal. The Applicant claims that he was granted a temporary visa in Islamabad in Pakistan to visit Australia for business purposes. He paid an agent $US10, 000.00 in order to obtain for him a visa to travel to Australia. He said:
The person arranged for me to travel to Singapore in April 2005. I was told that if I had travelled abroad prior to applying for an Australian visa then I would stand a better chance of obtaining an Australian visa. When I returned to Pakistan from Singapore the agent took my passport. I gave him $5,000.00. When he returned it to me there was an Australian visa endorsed in it. I paid extra money for a ticket to travel to Australia. When I arrived in Australia I met an associate of my agent in Pakistan and paid the associate the remaining $5,000.00. I have not seen this person since I paid him, nor have I had any contact with the agent in Pakistan.
I wanted to leave Pakistan. This is why I sold my home. I had to get out of the country. I was afraid that I would be seriously injured or killed if I stayed in Pakistan.[4]
[4] See Court Book at page 107.
The Applicant went on to claim that he, like his father before him, was a member of the Pakistan Peoples Party, and was active in political work for the party. He claimed that he was harassed and subject to violence in 1993 by members of the Pakistan Muslim League, the opposition party. He claimed that he assisted candidates in the election in 1997 and that coming home from the Party office he was set on by what he described as "goons" from the Pakistan Muslim League and slapped and pushed. He also claimed to have been threatened.
He claimed that on polling day he was abused and threatened by supporters of the Pakistan Muslim League, and claimed that he opposed the Government for its illegal seizure of power in 1999. He referred to problems at a rally in 2005, and claimed to have been beaten and stabbed for which he received hospital treatment and was then discharged.
The Tribunal considered the Applicant's claims in his application for review at pages 106 to 108 of the Court Book. The Tribunal considered the Applicant's claims as stated at the hearing at pages 108 through to 111 of the Court Book. The Tribunal considered Independent Country Information about Pakistan, and sets this out at pages 112 through to 114. The Tribunal's findings and reasons are found at pages 114 to 117 of the Court Book.
The Refugee Review Tribunal Decision
The Tribunal found that the Applicant was a Pakistani citizen who arrived in Australia on 29th August 2005. The Tribunal noted the Applicant's claims for refugee status as he feared harm both from his political opponents and from the Pakistani authorities on the basis of his political opinion.
The Tribunal also noted that the Applicant, through his advisor, claimed that he feared persecution because of his association with people smugglers, and that he was a member of a particular social group - namely trafficking victims.
The Tribunal accepted the Applicant had an association with the Pakistan Peoples Party, but did not accept that he had a recent and particular involvement with the Pakistan Peoples Party, or that he had been subject to acts of violence, arrest, or threats in recent times. The Tribunal said:
The Tribunal reaches this finding on the basis of the Applicant's written and oral evidence of the Tribunal.[5]
[5] See Court Book at page 114.
The Tribunal was critical of the Applicant's oral evidence to the Tribunal as non-descript and equivocal, and also vague and non-committal. The Tribunal went on to find:
In light of the paucity of the Applicant's evidence in respect to both his recent political activities and his claims of harm the Tribunal does not accept that the Applicant has faced threats to his life from political opponents and that his life is in danger should he return to Pakistan because of his political opinion.
The Tribunal did not accept that the Applicant had been subject to arrest by reason of his political activities, and noted that the reason for that is that the manner in which the claim came to light belied the genuineness of the claim. It was not raised in his statutory declaration to the Tribunal, or at the hearing when asked about his experiences and fears. The Tribunal said:
Rather the Applicant only raised it at the closing of the hearing in the context of requesting a delay in the Tribunal finalising his matter why he sought further documents from overseas and only when asked what these documents were and their relevance to his circumstances did the applicant claim to have been arrested in 2002. [6]
[6] See Court Book at page 115
The Tribunal also referred to country information and accepted that there is violence associated with political activity in Pakistan and that the authorities could be partisan in their treatment of persons of particular persuasions. However the Tribunal did not accept that the Applicant faced serious harm on his return to Pakistan in the reasonably foreseeable future by reason of his political affiliations because the Tribunal did not accept that the Applicant had had any recent or particular involvement in the PPP or that he had been subject in the recent past to harm or threats.
The Tribunal was not satisfied that there existed a real chance that the Applicant would be killed, arrested, or subjected to any other forms of serious harm on his return to Pakistan by either political opponents or Government authorities by reasons of his association with the PPP.
The Tribunal also was not satisfied that the Applicant's self-confessed provision of fraudulent documentation to the Department of Immigration & Multicultural Affairs to obtain a visa to enter Australia gave rise to a well-founded fear of persecution as a member of a particular social group - namely trafficking victims on his return to Pakistan. The Tribunal said:
The Applicant does not indicate from whom he fears harm, the nature of the harm he fears, or why he considers that harm, whatever it may be, would be persecutory. The Tribunal is unable to see how the Applicant's provision of false documents to Australian authorities would put him at risk of harm from Pakistani authorities. The Applicant did not, at the hearing, suggest that he feared harm by reason of his method of obtaining his Australian visa, rather he expressed concern that he had paid to an agent considerable money by selling his home in order to obtain the visa to come to Australia.
On consideration of the evidence as a whole the Tribunal was not satisfied the Applicant had a well-founded fear of persecution within the meaning of the Convention, and affirmed the decision not to grant him a Protection (Class XA) visa.
Application for Judicial Review
Turning to the Applicant's application the only grounds upon which he relies in order to show that the Tribunal fell into jurisdictional error are claims that the RRT breached procedural fairness in s.424A of the Migration Act1958. There is no particularisation of any claim of procedural fairness, and it is difficult to see from the Tribunal decision why the Applicant should make such a claim.
The Applicant provided to the Court on the last occasion, 20thSeptember 2007, a lengthy document headed Applicant's Submission on Competency. That document goes to some 14 pages, and is largely irrelevant. It does, on page 13, make a brief reference to his claim of a breach of s.424A of the Migration Act.
On page 13 the Applicant says under the heading:
Breach of s.424A and the application of SZGSI, SZEEU, and SAAP:
The Tribunal was obliged to inform the applicant in writing under s.424A of the Migration Act 1958 about the information it obtained from the Departmental file. The Tribunal never did so.
Because the applicant did not make these arguments in the proceedings before, this does not mean that the jurisdictional error made by the Tribunal has been rectified.
The matter was not dealt properly before. There is a miscarriage of justice in the matter. Therefore, for the best interests of justice, the matter must now be allowed for full hearing.
The matter also now falls within the application of SZGSI. The decision of SZGSI was not available when it dealt before.
Conclusions
Although the text of that submission would seem to indicate that there have been previous proceedings before a Court, this is not the case. The Applicant could hardly have argued a breach of s.424A before the Refugee Review Tribunal, and indeed he did not. It is quite clear from the Tribunal decision the Tribunal relied on the following information for dismissing the application:
i)The credibility of the Applicant's oral evidence to the Tribunal;
ii)The Applicant's written submissions to the Tribunal contained in his solicitor's letter and his statutory declaration.
Those are the reasons - namely, the fact that the Tribunal did not accept the credibility of the Applicant's claims - that the Tribunal affirmed the Delegate's decision.
The Applicant refers to the decisions of the Full Court of the Federal Court in SZGSI v Minister for Immigration and Citizenship[8], SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs[9] and SAAP v Minister for Immigration and Multicultural and Indigenous Affairs.[10]Those decisions are all irrelevant to this case, as they all deal with the application of s 424A(1) of the Migration Act. The Applicant's evidence to the Tribunal, whether written or oral, does not in any way come under the heading of sub-section 424A(1) of the Migration Act. It is evidence provided by the Applicant for the purpose of the application, and it is excluded under the provisions of s.424A(3)(b) of the Migration Act.
[8] [2007] FCAFC 110
[9] (2006) 150 FCR 214; [2006] FCAFC 2
[10] [2005] HCA 24
True it is that the Tribunal also referred to Independent Country Information. That information is excluded under the provisions of s.424A(3)(a) of the Migration Act. In this case, however, the Tribunal accepted that Independent Country Information supported some of the Applicant's claims about political activity in Pakistan. Nevertheless, the Tribunal was not convinced on the totality of the evidence before it that the Applicant had established an eligibility for a visa.
There is no breach of s.424A of the Migration Act. I am mindful of the fact that the Applicant is not legally represented. I am unable to discern any arguable case for jurisdictional error.
The Applicant was invited to attend a hearing under the provisions of s.425 of the Migration Act, and he attended that hearing with his advisor. There is no procedural unfairness.
The Applicant sought to rely on the decision of the High Court in Bodruddaza v Minister for Immigration and Multicultural Affairs. In my view, that decision is not relevant to this case. First, the Minister is not arguing that the application is incompetent under s.477(1). In any event, Bodruddaza does not deal with s.477. As Driver FM held in SZKKR v Minister for Immigration & Anor[11]:
In that case the High Court found invalid s.486A(1) of the Migration Act which is essentially in the same terms as s.477(1) of the Migration Act. Section 486A applies to proceedings in the High Court, whereas applies to proceedings in this Court. No issue was raised in Bodruddaza about the validity of the statutory time limits applicable in this Court and the Federal Court.[12]
[11] [2007] FMCA 650 at [10]
[12] See [24] and footnote 5 in that case
The Full Court of the Federal Court has since dealt with the issue of section 477 in Minister for Immigration and Citizenship v SZKKC.[13] That decision is binding on this Court.
[13] [2007] FCAFC 105
There is no arguable case for jurisdictional error apparent on the face of the decision or the supporting documents.
The application does not raise an arguable case for relief and will be dismissed with costs under Rule 44.12.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V. Lee
Date: 10 October 2007
[7]See Court Book at page 116.
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