SZLQH v Minister for Immigration
[2008] FMCA 936
•25 June 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLQH v MINSTER FOR IMMIGRATION & ANOR | [2008] FMCA 936 |
| MIGRATION – Review of decision of RRT – whether the Tribunal acted constitutionally. |
| Migration Act 1958, ss.32, 422B, 424AA Constitution, s.51(xxvii) |
| MIMA v Respondents S152/2003 [2004] HCA 18 NAAG of 2002 v Minister for Immigration [2004] FCA 713 |
| Applicant: | SZLQH |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| First Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 3546 of 2007 |
| Judgment of: | Raphael FM |
| Hearing date: | 25 June 2008 |
| Date of last submission: | 25 June 2008 |
| Delivered at: | Sydney |
| Delivered on: | 25 June 2008 |
REPRESENTATION
| For the Applicant: | In person |
| Counsel for the Respondent: | Mr Mitchell |
| Solicitors for the Respondent: | DLA Phillips Fox |
ORDERS
Application dismissed.
Applicant to pay the First Respondent's costs assessed in the sum of $4,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3546 of 2007
| SZLQH |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of Pakistan. On or about 28 June 2007 he jumped ship in Australia. On 24 July 2007 he applied to the Department of Immigration and Citizenship for a protection (Class XA) visa. On 11 September 2007 a delegate refused to grant him such a visa and on 15 September the applicant applied for review of that decision from the Refugee Review Tribunal. The applicant appeared before the Tribunal at a hearing on 3 October 2007. On 24 October 2007 the Tribunal determined to affirm the decision under review. That decision was communicated to the applicant who was then in immigration detention.
The grounds upon which the applicant claimed that he was a person to whom Australia owed protection obligations were that in March 2007 whilst working with his brother in his brother's shop in Swat in the Northwest Frontier Province he and his brother were attacked by members of the TNSM, a movement for the enforcement of Islamic law. The brother's shop was one selling CDs and DVDs and the TNSM had an objection to the sale of this type of product. The applicant claimed that when members of this organisation arrived they ordered him and his brother out of the shop and to stop trading. The brother remonstrated with the people and was stabbed. The applicant ran away to his father's home where he and his father blockaded themselves inside their house. Later the applicant received a warning letter from the TNSM stating that they were going to kill him. This was about three days after the brother had been stabbed. The applicant then made arrangements to leave the country. He flew to Bahrain and joined a ship there. The ship travelled to Australia and after two stops he jumped, possibly together with three other people.
The Tribunal questioned the applicant upon his story and whilst it accepted that the TNSM was indeed an organisation whose conduct might amount to persecutory conduct in certain circumstances, it was required to consider the particular circumstances of this applicant before making any generalised finding in relation to his status. The Tribunal accepted that the TNSM had participated in a type of activity that the applicant had complained about and that they were a particularly fanatical organisation that had been banned in Pakistan. But it considered that despite its prompting the applicant was unable to provide sufficient detail of the incident in the video store to satisfy it that the incident had actually occurred or that he and his brother were participants in it.
“The Tribunal is not satisfied that someone who witnessed such an incident would not be able to provide responses that contained more detail than the rudimentary and rote responses that the applicant provided at hearing. The applicant claimed that after his brother's stabbing he ran straight home because the TNSM were chasing him to kill him. He claimed that he and his father remained locked inside their house for three days and the TNSM didn't kill him because they locked the door. The Tribunal finds this explanation profoundly unconvincing. A brutal and fanatical organisation such as the TNSM would not be deterred from killing someone because of a locked door; equally, the Tribunal finds that the applicant's explanation that they were waiting for a better time to kill him implausible.”
The applicant produced for the Tribunal a copy of a document he claimed was his brother's death certificate [CB 111]. The Tribunal noted that this document was written in English and merely says that his brother was killed by a person (unidentified). The Tribunal did not consider this document satisfactory corroboration of the applicant's claim and it did not give it any weight. Because the Tribunal found that the applicant's story was itself implausible it found as a corollary that the applicant was not a person who was of any interest to the TNSM such that they would have persecuted him in the past or would persecute him should he return to Pakistan. The Tribunal considered the possibility of relocation and came to the view that there was no reason why the applicant could not relocate before saying:
“Be that as it may, as the Tribunal has found that the applicant is not of any interest to the TNSM, it follows the issue of relocation does not arise.” [CB 135]
The Tribunal considered whether or not the applicant's claims that he could not obtain effective state protection whilst in Pakistan was valid. After noting that the applicant was unable to substantiate his claim that the incident was reported to the police or that the report was not acted upon, it noted that the TNSM had been banned in Pakistan and many of its members had been arrested, which indicated a willingness on the part of the State to provide the necessary protection. The Tribunal referred to the views of the High Court expressed in MIMA v Respondents S152/2003 [2004] HCA 18 that no country could guarantee its citizens at all times and in all circumstances would be safe from violence. The Tribunal concluded that it could be not be satisfied that the authorities would fail to provide the applicant with a reasonable level of protection should he return to Pakistan, although it should be said that this finding was also unnecessary given that the Tribunal did not accept that he was in any danger from the TNSM in the first place.
The applicant filed a request for review with this court on 14 November 2007. He had three grounds. The first was:
“Migration Act 1958 s.32(1)(a) was not observed properly and the RRT member was not acting in good faith in decision-making process.”
There is no sub-s.32(1)(a) of the Migration Act 1958 (the “Act”). Section 32 refers to special category visas and does not seem to be relevant to this case. Insofar as the applicant alleges that the Tribunal is not acting in good faith he is making an allegation that the Tribunal was biased. Such an allegation has been repeatedly held to require full particularisation and proof. As Allsop J said in NAAG of 2002 v Minister for Immigration [2004] FCA 713 at [24]:
“Bad faith is not just a matter of poor execution or poor decision-making involving error, it is a lack of honest or genuine attempt to undertake the task in a way meriting personal criticism of the Tribunal or officer in question.”
There is nothing in the Tribunal decision that I have read that would indicate any lack of honest or genuine attempt to undertake the task and I cannot accede to the applicant's request to grant review on this basis.
The second ground raised by the applicant was:
“The decision does not relate to the subject matter of the legislation and the decision exceeds the limits set out in the Commonwealth Constitution.”
The grant of visas to persons who are not Australian citizens and who wish to remain in this country is a fundamental element of the Act and decisions relating to the grant or refusal of such visas are clearly the subject matter of the legislation. The power to make legislation for the good conduct of migration into this country has been bestowed upon the Australian parliament through the Constitution by s.51(xxvii). This ground must likewise be rejected.
Finally, the applicant says that the Tribunal deprived him of natural justice. This application was one to which the provisions of s.422B and s.424AA of the Act apply. Thus, the scope of the natural justice hearing rule was restricted as set out. There can be no doubt that the applicant was properly invited to a hearing, that during that hearing the matters of concern were put to him, in particular, the Tribunal's concern about his credibility. The Tribunal offered the applicant the opportunity to seek extra time to comment on or respond to any information that the Tribunal discussed with him at the hearing.
He was asked if he wished for a short adjournment so that he could contact his adviser and seek advice as to how he should proceed. The applicant did not require either of these favours. There are no particulars of the lack of natural justice provided to the applicant and in their absence I am unable to see where the claim originates.
Before me today the applicant said that he did not have proof and the Tribunal did not believe him. He had had a bad experience in the past and he could not return to Pakistan. He indicated that he believed the situation in that country was getting worse. These concerns do not go to the jurisdiction of the Tribunal. Recent events in Pakistan subsequent to the Tribunal decision are not matters that this court can take into account.
In these circumstances I am unable to assist the applicant by providing him with a review of the decision. I dismiss the application. I order that the Applicant pay the First Respondent’s costs assessed in the sum of $4,000.00.
I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
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