SZLUT v Minister for Immigration
[2008] FMCA 540
•8 May 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLUT v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 540 |
| MIGRATION – Review of a Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – application dismissed. |
| The applicant in these proceedings is not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) and has been given the pseudonym “SZLUT”. |
| Migration Act 1958 (Cth), s.91X, 424A |
| SZBYR v Minister for Immigration & Citizenship [2007] HCA 26 SZDPY v Minister for Immigration & Multicultural Affairs [2006] FCA 627 |
| Applicant: | SZLUT |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 3940 of 2007 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 31 March 2008 |
| Delivered at: | Sydney |
| Delivered on: | 8 May 2008 |
REPRESENTATION
| Applicant: | The applicant appeared in person with a Hazaraghi interpreter |
| Solicitors for the Respondents: | Mr G Johnson of DLA Phillips Fox |
ORDERS
The application filed on 21 December 2007 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3940 of 2007
| SZLUT |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
And
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The proceedings
The applicant is a male of Hazara ethnicity and Shia faith. He claims to have been born in 1979, and that his family originated from Afghanistan before moving to Quetta, Pakistan. He claims that he fears persecution in both Pakistan and Afghanistan because of his faith and ethnicity.
The applicant arrived in Australia on 14 June 2006 and applied to the Department of Immigration for a Protection (Class XA) visa on 21 September 2007. A delegate of the Minister refused to grant the visa on 8 October 2007 and the applicant applied to the Refugee Review Tribunal (“the Tribunal”) on 10 October 2007 for review of the delegate’s decision. The Tribunal decision of R Inder (reference 071783575) is the decision before this Court for judicial review.
A Court Book (“CB”) prepared and filed by the first respondent’s solicitor is marked Exhibit “A” and is the only evidence in this matter.
An amended application filed on 13 March 2008 contains one ground of review.
1. The decision of the second respondent (“the Tribunal”) dated 13 December 2007 (“the Decision”) was void for jurisdictional error in that the Tribunal failed to comply with s.424A of the Migration Act 1958 (Cth) (“the Act”).
Particulars
(a) In making the Decision, the Tribunal relied upon the following information as the reason, or part of the reason, for affirming the decision under review:
a. The applicant was the person who arrived in Australia on 14 June 2006 on Pakistani Passport No 72628430;
b. That the applicant had three previous Pakistani passports;
c. That despite arriving in Australia in June 2006, the applicant did not apply for a protection visa until 21 September 2007;
(b) The Tribunal did not give to the applicant in writing notice that the information would be the reason, or part of the reason, for affirming the decision under review.
(c) The Tribunal did not ensure that the applicant understood why the information was relevant to the review;
(d) the Tribunal did not invite the applicant to comment upon the information;
(e) The information was not that given by the applicant for the purpose of the application to the Tribunal;
(f) The information was specifically about the applicant.
At the first Court date, the applicant said that he wished to participate in the scheme that gives unrepresented applicants in refugee matters an opportunity to receive independent legal advice. The applicant, who was being held at Villawood Detention Centre, was allocated a panel advisor who provided him with advice. The panel advisor assisted the applicant in preparing the amended application, which was only filed six days prior to the final hearing. As the first respondent did not object, I granted leave for its filing.
Although orders were also made requiring the applicant to file and serve a written outline of submissions and list of authorities 14 days prior to the hearing, this was not complied with.
Applicant’s claims
Attached to the applicant’s protection visa application is a statutory declaration setting out a number of claims (CB 32-34):
a)The applicant was a citizen of Pakistan whose family moved to Quetta, Pakistan from Afghanistan before he was born and, as such, he believes he is entitled to Afghan citizenship.
b)He fears persecution in both those countries because he is easily recognisable as being of Hazara ethnicity and Shia faith.
c)The Taliban are prominent in Quetta and discriminate against and frequently harm or kill Hazaras and people of the Shia faith.
d)In 2004 there was a suicide bombing at a Shia mosque which killed about 70 people. In the same year, 11 Hazaras in the police force were also killed because of their ethnicity. The applicant had been attacked several times because of his ethnicity.
e)The Pakistani government and authorities are sympathetic to the Taliban and also target Hazaras. The applicant witnessed three of his friends being shot dead by police and believes he would have also been shot had the army not arrived.
f)In order to escape persecution, he arranged travel to Australia and married an Australian woman. Before the wedding, he was sentenced to jail for nine months for breaking and entering and has not seen his fiancé since.
In an interview with a Department officer on 4 October 2007 at Villawood Detention Centre, the applicant made two further claims:
a)He discovered several days before the interview that he was actually born in Afghanistan and moved to Quetta when he was four or five years old
b)His family had been illegal residents of Pakistan and his passports were obtained through bribes.
In a letter forwarded to the Tribunal by the applicant’s solicitor/registered migration agent, dated 29 October 2007 two new issues were raised (CB 146-153):
a)The applicant had recently discovered that he was born in Gurdough, Afghanistan and that his parents moved to Quetta, Pakistan soon after his birth. Consequently, he was not a Pakistani citizen or lawful resident and had no right to re-enter that country.
b)The recent attack on Pakistan’s former Prime Minister, Benazir Bhutto, on 18 October 2007 indicated that Pakistan was not able to provide protection for its own people. In addition, the fact that he had been attacked several times in Pakistan was evidence that it would not be safe for him to return.
At the Tribunal hearing of 8 November 2007, the applicant advanced further information in respect of his previous claims:
a)He had been issued with three Pakistani passports, two of which had expired. The Tribunal put to him that he renewed his Pakistani passport every five years and he agreed.
b)He had previously travelled to Iran, Afghanistan and Turkey.
c)He attended a school in Pakistan for eight years exclusively for people of Hazara ethnicity.
The Tribunal recorded the following the its decision record the sub-heading “Claims made at the hearing on 8 November 2007”:
The Tribunal referred to its introductory remarks and said he was entitled to seek additional time to comment on or respond to the information that had been provided to him during the hearing. The applicant indicated that he wished to take up this offer and, accordingly, the Tribunal proposed that the hearing be adjourned and reconvene at 13:00 on Thursday, 15 November 2007 which he agreed to. The Tribunal indicated that it would be a short hearing without the normal introductory remarks as it would be a resumption of a current hearing and the purpose was to focus on the information put to the applicant at the day’s hearing by the Tribunal and to receive his considered response on those matters. (CB 232.6)
At the hearing resumed on 15 November 2007, the Tribunal put the following matters to the applicant:
a)That he waited 15 months after arriving in Australia before applying for a protection visa. The Tribunal found it hard to accept that he left Pakistan because he feared for his life. The applicant’s response was that he waited because he did not have anyone to assist him.
b)With respect to his injuries in Pakistan, the Tribunal put to him that it was impossible to determine if they were because of a Convention related reason. The applicant re-stated that he had been attacked because he was a Hazara.
c)That the Pakistani government wanted to eradicate Afghans and asked Afghans who held Pakistani passports to surrender them and return to Afghanistan. The applicant claimed that if he returned to Pakistan he would be forced back to Afghanistan and would then face persecution.
Consideration
Although the applicant was self-represented and appeared with the assistance of a Hazaraghi interpreter, he did have the benefit of an amended application prepared by his panel advisor. Correspondence on the Court file indicates that the panel advisor was provided with a copy of the Court Book and a tape-recording of the Tribunal hearing. The applicant did not have any written or oral submissions to make in support of his application.
When invited to make oral submissions, the applicant attempted to tender a series of letters which he had recently received from associates in Pakistan. The applicant was reminded that the matter before this Court was a judicial review of the Tribunal decision. He would have to establish that the letters related to matters placed before the Tribunal for consideration prior to its decision. The applicant acknowledged that the letters related to recent developments in Pakistan and had not been placed before the Tribunal but which supported his overall claim. The tender of these letters was rejected.
Mr Johnson, for the first respondent, addressed the three pieces of information identified in the amended application. The Tribunal decision records the following:
The Tribunal asked the applicant when he arrived in Australia, as he claimed in his protection visa application that he arrived on 1 July 2006 but the department’s movement database indicated that a person with his name and date of birth had actually arrived on 14 June 2006. He replied that he didn’t remember the date he arrived. The Tribunal again put to him that the department’s movement records indicated that he arrived on 14 June 2006, and he again repeated that he did not remember the date or month. The Tribunal said that it had to assume that he in fact arrived in Australia on 14 June 2006 using Pakistan passport number 72628430. (CB 229.5)
Mr Johnson submits that the passport detail was not “information” that would enliven the operation of s.424A of the Migration Act 1958 (Cth) (“the Act”) because it was exempt by s.424A(3)(b). Mr Johnson relied on SZDPY v Minister for Immigration & Multicultural Affairs [2006] FCA 627 at [35] per Kenny J:
[35] It is clear that the appellant specifically provided the Tribunal with his educational details. I reject the appellant’s submission that the information does not fall within s 424A(3)(b) because it was given in response to questions in the nature of ‘cross-examination’. The Tribunal’s questions were specific and arose, naturally enough, from the appellant’s visa application. The appellant gave direct answers. The relevant information was simple and could be easily given in response to such questions. Further, SZEEU provides support for the proposition that where an applicant affirms a specific fact before the Tribunal that information will be covered by the exclusion in s 424A(3)(b). At [91] Moore J, with whom Weinberg J at [173] and Allsop J at [264] agreed on this issue, said:
“While it appears that the Tribunal originally came to know that the appellant entered Australia on a business visa from sources other than the appellant (an inference which could be drawn from the way the letter of 4 February 2004 was framed) it is tolerably clear from the Tribunal’s reasons that it discussed this fact (that the appellant had entered Australia on a business visa) with the appellant and he affirmed he had. Thus it was information comprehended by s 424A(3)(b) even though it was information also derived from an alternative source.”
Similar reasoning applies in this case. The appellant gave the Tribunal information concerning his educational and employment history at the Tribunal hearing, although the Tribunal had reference to the appellant’s visa application in discussing some aspects of his history with him.
There is no transcript of the Tribunal hearing before the Court. However, it appears that the exchange between the Tribunal member and the applicant can be categorised as a request for the applicant to confirm a specific fact.
In respect of the second issue concerning the applicant’s three previous passports, the Tribunal decision records the discussion regarding this issue:
The Tribunal noted that in his Protection Visa application, he claimed that he had been legally issued with three Pakistani passports, and asked him if this was correct. In reply, he claimed that he had held three Pakistani passports but two had expired and one was still valid. Asked when he obtained each of these, he replied he didn’t remember as his father arranged them. Asked how long they were valid for, he replied for five years each. The Tribunal put to him that he renewed his Pakistan passport every five years and the applicant affirmed that this was the case. (CB 228.6)
Again and similar to the first issue, the applicant was asked to affirm a specific fact before the Tribunal which makes this material exempt from s.424A because it falls within the exemption under s.424A(3)(b).
In respect of the third issue, being a request to affirm the date to be applied to the protection visa, the Tribunal said:
However, the Tribunal noted that he entered Australia on a prospective spouse visa on 14 June 2006 but did not apply for a protection visa until 21 September 2007, over 15 months later. (CB 230.8)
The Tribunal refers to this issue again in its “Findings and Reasons”. The following passage is recorded:
However, while the applicant claimed at the hearing that he was uncertain when he actually arrived in Australia, the Tribunal has already found that he arrived in Australia on 14 June 2006 on a Pakistan passport number 72628430 issued to him with his date of birth and name in it. That said, the Tribunal also found that the applicant did not apply for a Protection Visa until 21 September 2007, over 15 months later. At the hearing, the Tribunal put to the applicant that as he had waited over 15 months before applying for a protection visa, even though he claimed that he came to Australia because he feared for his life, it maybe possible to conclude that he did not have a well founded fear of serious harm amounting to persecution in Pakistan or Afghanistan. (CB 241.5)
Mr Johnson submits that the conclusion drawn by the Tribunal was not information in itself but a subjective appraisal made by the Tribunal member. In support of this contention, Mr Johnson referred to SZBYR v Minister for Immigration & Citizenship [2007] HCA 26 at [18] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ:
[18] Thirdly and conversely, if the reason why the Tribunal affirmed the decision under review was the Tribunal's disbelief of the appellants' evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting "information" within the meaning of para (a) of s 424A(1). Again, if the Tribunal affirmed the decision because even the best view of the appellants' evidence failed to disclose a Convention nexus, it is hard to see how such a failure can constitute "information". Finn and Stone JJ correctly observed in VAF v Minister for Immigration and Multicultural and Indigenous Affairs that the word "information" does not encompass the tribunal's subjective appraisals, thought processes or determinations … nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc.
If the contrary were true, s 424A would in effect oblige the Tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. However broadly "information" be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. The appellants were thus correct to concede that the relevant "information" was not to be found in inconsistencies or disbelief, as opposed to the text of the statutory declaration itself.
I agree with the submissions made by Mr Johnson that the three issues identified in particular (a) do not enliven the operation of s.424A and consequently the steps identified in the remaining particulars do not come into effect. In the circumstances, ground one cannot be sustained and should be dismissed.
Conclusion
Although the applicant is a self represented litigant, he has received assistance from a legally qualified panel advisor in reviewing his case and preparing an amended application on his behalf. It was apparent at the Court hearing that the applicant did not comprehend the issues ventilated and the only submissions made by him was a further attempt to put new information before the Court in support of his protection visa application.
The amended application was filed only a number of days prior to the hearing. This did not provide the first respondent with an opportunity to prepare written submissions in response. However, Mr Johnson assisted with oral submissions addressing the issue raised in the amended application. I am satisfied that those submissions address the claim made and that it cannot be sustained. On a fair reading of the Court Book and the Tribunal decision, it is not apparent from the face of those documents that any other jurisdictional error is apparent. Consequently, the application should be dismissed with costs.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
Date: 8 May 2008
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