SZLHM v Minister for Immigration

[2008] FMCA 62

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLHM v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 62

MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming decision of a delegate of the Minister not to grant a protection visa – applicant is a citizen of Pakistan –  credibility – no jurisdictional error.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.91X, 422B, 424A, 474

NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte ApplicantS20/2002 (2003) 198 ALR 59

Applicant: SZLHM

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2801 of 2007

Judgment of: Howard FM

Hearing date: 18 January 2008

Date of Last Submission: 18 January 2008

Delivered at: Sydney

Delivered on: 18 January 2008

REPRESENTATION

Applicant: In Person

Counsel for the Respondent: Ms Sirtes

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. The Application is dismissed.

2. The Applicant is to pay the First Respondent’s costs fixed in the sum of $3,000.00. The Applicant has six (6) months to pay the costs.  

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2801 of 2007

SZLHM

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. The Applicant in this case was born in 1971 in Pakistan. The Applicant is a citizen of Pakistan. I note that the Applicant holds a Bachelor of Arts degree from the Peshawar University in Pakistan.  His application for a Protection visa notes that he speaks, reads and writes English and Urdu fluently. He is assisted today by an Urdu interpreter.

2. I note that the Applicant worked as a sales executive in Pakistan. He belongs to the religious sect known as Shia Muslim. He first visited Australia in 2005 and stayed for approximately three months before returning overseas. The Applicant arrived in Australia again on 5^th January 2007 and on 6^th February 2007 he lodged an application for a Protection visa with the Department of Immigration & Multicultural Affairs. 

3. The Minister's Delegate refused to grant the Protection visa. The Applicant therefore applied to the Refugee Review Tribunal. The Applicant attended a hearing of the Refugee Review Tribunal and gave oral evidence on 28^th June 2007. After giving that evidence and after being questioned by the Tribunal, the Applicant asked for some further time in order to provide further documentation to the Tribunal.  In fact, he was allowed one month from that date to provide the further documentation.

4. The Tribunal, in fact, granted a request for an extension of time in relation to the provision of those documents until 14^th August 2007.  Unfortunately, the Applicant was not able to provide any further documentation by that date. 

5. The Tribunal made its decision on 16^th August 2007 and the decision was handed down on 4^th September 2007.  The decision affirmed the Delegate's decision to refuse to grant the Protection visa.

6. The Applicant has applied for judicial review of the decision of the Refugee Review Tribunal. I explained to the Applicant at the outset this morning that the Court's role in reviewing the Refugee Review Tribunal Decision is somewhat limited. The approach of the Court in cases such as this is limited by both statute and precedent. 

7. The basis for the claim for a Protection visa is essentially that by reason of the Applicant's membership and involvement with a group in Pakistan referred to in the Decision as the Imamia Student Organisation (ISO) (Hangu branch) he was persecuted in Pakistan and that should he be required to return to Pakistan he fears for his own safety. The ISO appears to be a Shia organisation, organised to assist students of that same religion.

8. The persecution which the Applicant says occurred and his claims to fear for his own safety apparently revolve around clashes between Shia and Sunni Muslims in Hangu and the retaliation that occurred thereafter.  According to the Applicant he was targeted by both the Shia and the Sunni because he had tried, as a member of the ISO, to broker a peace deal between the two religious factions.

9. In his application for a Protection visa, and more importantly in his evidence before the Refugee Review Tribunal, the Applicant detailed certain dates when incidents had occurred in Pakistan involving clashes between the two religious factions of Shia Muslim and Sunni Muslim.  In particular these incidents occurred in Hangu. 

10. Unfortunately for the Applicant, the Refugee Review Tribunal did not believe his evidence. The Refugee Review Tribunal in fact concluded in relation to the Applicant that he had fabricated his claims. 

Application for Judicial Review

1. In this case the Court Book was admitted into evidence and marked Exhibit 1.

2. The Applicant's application for judicial review is in fact an amended application and was filed on 7^th December 2007:

   ·In paragraph 1, a reference is made to the Applicant's uncle and indeed to the uncle's apparent assassination in July 1985. That paragraph gives some background in relation to the problems which the Applicant says have occurred in Hangu concerning Shia and Sunni Muslims. 

   ·Paragraph 2 of the application sets out further information provided by the Applicant concerning his own history and what was occurring in Pakistan in 1997 and 1998. 

   ·Paragraph 3 provides further history concerning the Applicant about where he was living and so on and further information concerning what had happened in Pakistan. 

   ·Paragraph 4 refers to an incident which had apparently occurred when the Applicant was in a car and somebody had opened fire on the car. I note that incident was referred to in the decision of the Tribunal. But the Tribunal, because it had made essentially a credibility finding against the Applicant, did not accept that that incident had occurred. It goes further in relation to what happened to the Applicant, where he was living, and so on.

   ·Paragraph 5 begins to talk about the Refugee Review Tribunal Decision.  The first sentence reads:

   "That the information’s used in the instant case by the Respondent No 2 RRT are very vague and are not based on the facts and the circumstances of the applicant's case." 

   He goes on further in that paragraph to set out why he says the RRT Decision was wrong, referring mainly to the fact that he considers that the RRT relied upon incorrect information. 

3. Insofar as the amended application criticises the Refugee Review Tribunal's reference to and reliance upon the Independent Country Information, I agree with the submission in paragraph 18 of the counsel for the First Respondent. I note the decision in NAHI v Minister for Immigration & Multicultural & Indigenous Affairs[1] at [11]:

   “There can be no objection in principle to the Tribunal relying on ‘country information’. The weight that it gives to such information is a matter for the Tribunal itself, as part of its fact- finding function. Such information as the Tribunal obtains for itself is not restricted to ‘guidance’, as the appellant submitted.  It may be used to assess the credibility of a claim of a well-founded fear of persecution.  It is not, as the first appellant submitted, an error or law, or a jurisdictional error, for the Tribunal to base a decision on ‘country information’ that is not true. The question of the accuracy of the ‘country information’ is one for the Tribunal, not for the Court.  If the Court were to make its own assessment of the truth of ‘country information’, it would be engaging in merits review.  The court does not have power to do that.” 

   [1] [2004] FCAFC 10

4. I will, for completeness, refer to the original application filed in the Court on 12^th September 2007 by the Applicant. That original application raised three grounds of review:

   a)The Tribunal did not take into consideration the evidence on the file.

   b)The Tribunal denied the Applicant natural justice.

   c)The Applicant requests further time as he ‘did not receive the application because it is not possible yet’.

Ground 1

1. I agree with paragraphs 9, 10 and 11 of the written submissions provided by the counsel for the First Respondent: 

   [9] By these particulars, the applicant alleges that the Tribunal did not take into account the evidence “on file”. What it meant by that is not entirely clear. If it is intended to suggest a failure to consider documents before the delegate, such as the Part B documents as considered in Muin v Refugee Review Tribunal & Ors, Lie v Refugee Review Tribunal & Ors (2002) 76 ALJR 966 then the factual basis for a claim such as was made out in Muin and Lie is not established in the circumstances of this case.

   [10] There is no evidence that Part B documents were not taken into account or of any representation that they would be taken into account, or reliance by the applicant on such representation. There is also no statement of agreed facts in relation to such matters as was the case in Muin. Jurisdictional error is not established on this basis.

   [11] If it is a suggestion that the tribunal did not properly consider the documentary evidence before it, then this is also baseless. The Tribunal did consider the documents submitted by the applicant and found that:

   a) The letter of support were not to be accorded weight given that it had made factual findings in relation to the applicant’s claims which did not accord with the letters. The letters were found to have been manufactured in support of the claim. The weight which is to be attributed to evidence is a matter for the tribunal and failure to accord weight to such evidence is not a matter which gives rise to jurisdictional error: see Abebe v The Commonwealth (1999) 197 CLR 510 at [197] per Gummow and Hayne JJ, and Chand  v Minister for Immigration and Ethnic Affairs (unreported, Full Federal Court, 7 November 1997) per Von Doussa, Moore and Sackville JJ, citing Minsiter for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at pages 281 to 282, said (at page 11):

   “The RRT is required to evaluate all the evidence put before it by an applicant for refugee status. Where there is conflicting evidence from different sources, questions of credit of witnesses may have to be resolved. The RRT is also entitled to attribute greater weight to one piece of evidence as against another, and to act on its opinion that one version of the facts is more probable than another.”

   b) The First Incident Report was also rejected, on the basis that it was not evidence of the matters in respect of which it was tendered to support. Such an assessment of the probative value of a document was also within the unique jurisdiction of the Tribunal.

2. Essentially, I find that the first ground referred to by the Applicant in his application filed on 12^th September 2007 does not establish any jurisdictional error by the Tribunal. 

Ground 2

1. As to the second ground, the apparent or alleged denial of natural justice, s.422B of the Migration Act 1958 is relevant.  I agree with the submission made by the counsel for the First Respondent that unfortunately for the Applicant he has not in fact identified any breach of natural justice which falls outside the essential ambit of that section.

Ground 3

1. In the third ground the Applicant requests further time. It is not clear exactly what the Applicant means by that paragraph but, in any event, it certainly does not point to any jurisdictional error on the part of the Refugee Review Tribunal.

Conclusion

1. In relation to the written submissions provided by the Applicant, filed on 10^th January 2008, and also in relation to his submissions made orally today before the Court, I am not satisfied that they point to any jurisdictional error by the Refugee Review Tribunal. 

2. Because of the inclusion in the Migration Act 1958 of s.474, the scope of this Court, and indeed any Court, in reviewing by way of judicial review a decision of the Refugee Review Tribunal is extremely limited. Unless a jurisdictional error can be identified, there is essentially no basis upon which the Court can act: note Plaintiff S157/2002 v Commonwealth of Australia[2]. 

   [2] (2003) 211 CLR 476

3. I would also refer to a further Decision of the High Court in a matter called Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte ApplicantS20/2002[3], and in particular it is quoted in a text by the authors Aronson, Dyer and Groves entitled ‘Judicial Review of Administrative Action’:

   “Regardless of the supervisory jurisdiction invoked in a particular case, judicial review is said to be limited to reviewing the legality of administrative action.  Such review, ordinarily, does not enter upon a consideration of the factual merits of the individual decision.  The grounds of judicial review ought not be used as a basis for a complete re-evaluation of the findings of fact, a reconsideration of the merits of the case or a re-litigation of the arguments that have been ventilated, and that failed, before the person designated as the repository of the decision-making power”.[4]

   [3] (2003) 198 ALR 59

   [4] M. Aronson, B. Dyer and M. Groves, ‘Judicial Review of Administrative Action’ 3^rd Edition, Thomson Lawbook Co, 2004, p.180.

4. This leads me to the inexorable conclusion that there has been no jurisdictional error identified by the Applicant in relation to the decision of the Refugee Review Tribunal and, accordingly, this application is dismissed

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Howard FM

Associate:  V Lee

Date:  18 January 2008