SZLVZ v Minister for Immigration

[2008] FMCA 1202

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLVZ v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 1202

MIGRATION – Review of 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 “SZLVZ”.

Migration Act 1958 (Cth), ss.91X, 424A

SZIEW v Minister for Immigration & Citizenship [2008] FCA 522
SZLVW v Minister for Immigration & Anor [2008] FMCA 1199

Applicant: SZLVZ

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG 14 of 2008

Judgment of: Lloyd-Jones FM

Hearing date: 9 July 2008

Delivered at: Sydney

Delivered on: 29 August 2008

REPRESENTATION

Applicant: The applicant appeared in person with the assistance of a Mandarin interpreter

Counsel for the Respondents: Ms N Johnson (solicitor)

Solicitors for the Respondents: Sparke Helmore Lawyers

ORDERS

1. The application filed on 4 January 2008 is dismissed.

2. 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 14 of 2008

SZLVZ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The proceedings

1. The applicant arrived in Australia with his older brother (“SZLVW”) who also filed a Protection (Class XA) visa application. The application was dismissed by a delegate of the Minister for Immigration on 2 March 2007 while his brother’s application was dismissed on 8 March 2007. Both brothers made separate applications to the Refugee Review Tribunal (“the Tribunal”) on 23 March 2007 which subsequently confirmed the delegate’s decision on 29 November 2007. Separate applications for judicial review before this Court were filed on 4 January 2008 (brother “SZLVW” SYG14 of 2008). As the applicants are brothers and their claims substantially the same, the hearings were held simultaneously with each brother appearing and giving evidence but separate judgments have now been prepared.

2. This applicant who is the younger brother was born in 1977.  He states that he has never married.  The applicant was educated in Pakistan for twelve years.  He claims that from 2002 to November 2006, he was in charge of a store for a company named Mudasar and Nela Gumbad, Lahore.  Before that he worked as a packer.  The applicant travelled to Australia on a valid Pakistani passport.

3. The applicant claims to fear persecution from fundamentalists for reason of his political beliefs and his membership of a non-government organisation (NGO).  The applicant claims that the authorities would not protect him because he was from the Pakistan Muslim League (NAWZ) group whose “government was ousted by the current military dictatorship”.  The applicant expanded on his claims in a statement dated 20 December 2006.  The applicant stated that his older brother, SZLVW, was his mentor.  He states that SZLVW was a great human rights activist and helped the International Human Rights Commission (IHRC) expose the abuse of women’s rights in Pakistan. 

4. The applicant states that his brother asked him to join the IHRC in Lahore, which he did in 2004. He was “performing more spying duties on the issues of women’s rights abuse”. The applicant also claims that he was selected as joint secretary of the Pakistan Muslim League, Nawaz Sharif Group in 2004. His brother paved the way to this position.

5. The applicant arrived in Australia on 6 December 2006 and applied for a Protection (Class XA) visa on 21 December 2006.  The delegate refused to grant the applicant the visa on 8 March 2007 and the applicant applied to the Tribunal on 23 March 2007 for review of the delegate’s decision.  The Tribunal affirmed the delegate’s decision not to grant the applicant a protection visa.  It is this decision (reference number 071286634) which is the subject of these proceedings.

6. A Court Book (“CB”) was prepared and filed by the first respondent’s solicitors and is marked Exhibit “A”.  This document was read into evidence.

7. The original application contains 12 grounds of review in identical terms to that of his older brother, SZLVW.  An amended application was filed on 23 April 2008 which contains 10 grounds, some of which are particularised, also in identical terms to that of SZLVW’s amended application.

8. At the first Court date, the applicant indicated to the Court that he wished to participate in the scheme that gives unrepresented applicants in refugee matters an opportunity to receive independent legal advice on the prospects of his appeal.  The applicant was allocated a panel advisor.

Claims

1. The applicant claims to fear persecution in Pakistan from the Jamaat-e-Islami (JI) and Muttahida Majlis-e-Amal (MMA) and other religious fundamentalists because of his political and social affiliations with the International Human Rights Commission (IHRC) and the Pakistan Muslim League, NAWAZ Sharif Group (PMLN).  In support of this claim the applicant cites the following:

   a)The police visited him every three months since he joined the PMLN and he was arrested on several occasions for his involvement in rallies against the government.

   b)He and his brother were involved in women’s rights issues with the IHRC, assisting women who were victims of domestic violence and rape.  He organised a rally in support of a legislative bill amending Pakistan’s rape laws.  During that rally they were kidnapped and bashed for three days by fundamentalist JI and MMA members.  While he was in Australia his home in Pakistan was attacked and his family threatened.

   c)He was dismissed from his employment because of his political activities.  He was also depressed and suffered memory and concentration problems as a result of his torture.

2. The applicant also feared persecution based on his membership of the particular social group of his family, given his relationship to his brother and due to his brother’s lengthier and more involved political involvement with the PMLN and the IHRC.  Since declaration of a state of emergency in Pakistan and the current climate for Nawaz Sharif supporters, he and his brother now fear arrest and detention by police in relation to their political activities.

Tribunal decision

1. The applicant and his brother attended a Tribunal hearing on 6 June 2007 and gave evidence.  The applicant’s registered migration agent attended by telephone and was able to participate in the hearing.  The agent also made several written submissions and submitted various supporting documents and country information on the applicant’s behalf. 

2. On 18 July 2007 the Tribunal forwarded an “Invitation to Comment on Information” letter pursuant to s.424A of the Act inviting the applicant to comment on information and inviting him to inform the Tribunal if he wished to have a further hearing to give additional oral evidence (CB 118-129). The applicant’s migration advisor responded with a psychological assessment (CB 130) and a written statement (CB 131-135). On 19 October 2007 the Tribunal send a second “Invitation to Comment on/Respond to Information in Writing” letter inviting the applicant’s comment on a second group of issues (CB 137-138).

3. The Tribunal had regard to the oral evidence of the applicant and his brother, together with the written submissions and responses to the s.424A letters prepared by their advisor. The Tribunal considered but did not accept all of this material and accordingly did not accept the applicant’s claims.

4. The Tribunal did not accept that the applicant (or his brother) were members of, or involved in, the IHRC for the following reasons:

   a)The IHRC membership cards produced to the Tribunal contained anomalies.

   b)There was inaccurate evidence as to the nature of the IHRC’s presence which was inconsistent with their claimed involvement.  The newspaper reports submitted in relation to their alleged kidnap was at odds with their evidence.  Independent country information indicates that it is possible to pay or use private contractors to have newspaper articles published depicting persecution.  The Tribunal did not accept that the reports provided a reliable reflection of true events.

   c)The newspaper reports referring to an attack on the family home did not provide an accurate or reliable account of the true events, given that the applicant (and his brother) did not refer to the attack in his protection visa application and given the difficulty with newspaper articles referred to in (b) above;

   d)While the Tribunal accepted and exercised caution in relation to cultural differences, it had difficulty accepting the evidence about the way the IHRC dealt with women’s rights issues.  Given its other concerns with the applicant’s claims, the Tribunal accepted that the DFAT information indicated that the IHRC had a limited role in women’s rights and there was little evidence of assistance of rape and domestic violence victims at a local level;

   e)Given that fraudulent documents were readily available in Pakistan, the Tribunal had regard to the IHRC letters, business cards, hospital discharge cards and the letter of termination from the applicant’s employer.  It did not consider them sufficient to outweigh the other factors causing it to conclude that the applicant and his brother were not involved with the IHRC.

   Consequently, the Tribunal did not accept that the applicant (or his brother) were involved in a rally or that they were detained, tortured or harmed as a result, that they had ever come to the adverse attention of any party due to the involvement with the IHRC, or that as a result their home or family were targeted following their departure from Pakistan. 

5. The Tribunal did not accept that the applicant (or his brother) were members of the PMLN for the following reasons:

   a)It did not accept that the applicant displayed knowledge of the PMLN consistent with his claimed role as joint secretary and claimed involvement in some of the activities – such as organising meetings and rallies.  The Tribunal did not accept that he could have been involved in the PMLN without a membership card, and found his failure to attend any meetings to be inconsistent with an interest in the party and being an office bearer.

   b)It did not accept that the applicant ever held pro-PMLN political opinion as a result of the political involvement of his brother.

   c)It did not accept that the “Notification” submitted as evidence of the applicant’s membership was a reliable indicator of involvement in the PMLN as a result of the difficulties it had with other evidence. 

   Consequently, the Tribunal did not accept that the applicant or his brother had come to the adverse attention of the government authorities, or any political or religious group, as a result of involvement in the PMLN. 

6. Although the Tribunal accepted the evidence in the psychiatric report that the applicant may have been suffering from memory and concentration problems, was traumatised or concerned for his family, it did not accept that they were because of involvement in the IHRC or PLMN or that his family was at any risk for the same reason. The Tribunal accepted that the applicant and his brother might have had scars but it did not accept that they were the result of the described events.

7. The Tribunal accepted evidence that politics in Pakistan had recently become oppressive, but it did not accept that the police had come in search of him or his brother following the imposition of marshal law in Pakistan.  It further did not accept that the applicant had a profile which would lead him to be sought in that way or that he had any interest in politics or women’s rights. 

8. The Tribunal did not accept that the newspaper reports on their own, in the absence of any actual activity, would be sufficient to cause the applicant (or his brother) to face persecution from fundamentalists or others because of an imputed political opinion or perceived membership of a social group.  It found that the chance of persecution for actual or imputed political opinion, religion, membership of a social group was remote, even accepting the recent deterioration of Pakistan’s political environment.

Consideration

1. When the applicant was invited to make oral submissions he said he would rely on the evidence given by his brother (see SZLVW v Minister for Immigration & Citizenship [2008] FMCA 1199). When I asked if there was there anything he wanted to add to his brother’s submissions he replied that he had the same problem as his brother and that part of the Tribunal hearing had not been recorded. I indicated that I was aware of this problem.

2. Ms Watson, for the respondents, indicated that she had no knowledge of there being any problem with the Tribunal hearing tapes in respect of this applicant.  As she understood the situation, the applicant’s brother was advised of such a problem by his panel scheme advisor but there was no such problem for this applicant. 

3. I indicated that I understood the applicant’s submission to be that he was relying on his brother’s submissions and that any defect in his brother’s case would have an impact on his case.  I note that at the commencement of the hearing when the tapes issue was discussed, the applicant in fact held up two tapes.  I asked the interpreter to clarify whether the applicant’s comments about the unavailability of a hearing tape related to the weakness of his brother’s case, as he relied totally on his brother’s case. 

4. SZLVW (the brother) on behalf of SZLVZ (this applicant) replied that the hearing tapes were important in proving that errors had been made by the Tribunal.  Not having them would deny them being able to prove what occurred during the hearing.  SZLVW said that as an example the Tribunal saying that the applicant had no knowledge of the PMLN can only be proved by listening to the hearing tapes.

5. The interpreter indicated that the applicant said that the quality of the tapes recording his portion of the Tribunal hearing was of very poor quality and it was difficult to hear what was being discussed.

6. Ms Watson stated that as the pleaded grounds were identical to those relied upon by SZLVW, she relied on the same submissions.  To assist the Court, Ms Watson briefly reviewed the Tribunal decision highlighting similarities in reasoning. 

7. Ms Watson also clarified that when she referred to information that was put to the applicant at the hearing, she was specifically referring to the information which the Tribunal had obtained from websites on the conduct of the IHRC and the PMLN, which was discussed with the applicant during the hearing.  There was also some information on the date the bill in relation to rape victims was passed, which is clear from the decision itself. 

8. When the applicant was invited to make submissions in reply he sought leave to have his older brother SZLVW speak on his behalf.  Leave was granted.

9. It was also drawn to the Court’s attention that both applicants received extensive letters prepared under s.424A of the Migration Act 1958 (Cth) (“the Act”). In addition, subsequent letters were sent to the applicant’s advisors providing post hearing information and seeking comment in relation to them. The “Invitation to Comment on/respond to Information in Writing” letter dated 19 October 2007 contains information obtained from the Department of Foreign Affairs and Trade. Ms Watson submits that technically this information may not have needed to be subject to a s.424A letter, however, it was provided and the applicant’s advisors responded to the enquiry.

10. SZLVW on behalf of this applicant referred to the IHRC membership cards and particularly the spelling mistakes on them.  The applicant indicated that he provided the Tribunal with a letter from the IHRC which confirmed that both brothers were members and that they had worked for the organisation.  The IHRC also provided a letter on its letterhead which detailed the work performed and the style in which it was carried out.  The applicant claims that there were no errors in the documentation.

11. The Tribunal decision is in a very similar format to that of SZLVW.  The Tribunal notes essentially two bases for the claim advanced by the applicant being membership of the IHRC and the PMLN in Pakistan.  The decision deals with membership of the IHRC first and notes:

    However, there are numerous difficulties with the evidence, which led the Tribunal to conclude the applicant and his brother were never involved in the IHRC or its activities. (CB 191.2)

12. The Tribunal considered information from the IHRC constitution which said that a membership card is issued to every member.  The Tribunal then dealt with aspects of SZLVW’s evidence which caused it some concern.  It then concluded:

    The Tribunal has considered carefully the evidence of the applicant regarding their claimed involvement in PML(N). (CB 193.5)

13. SZLVW also indicated that the applicant suffers from the same condition due to trauma.  He claims that as both have been away from their family for a long time, they were confused about when the women’s protection bill was passed.  When they were kidnapped and detained they were in poor mental condition as they were completely cut of from society.  On their release they remained in hiding because they did not feel safe and did not know what else may happen to them.  Consequently they isolated themselves at home and did not have access to newspapers.  SZLVW stated that they did not have access to a newspaper on 1 January 2007 when it was reported that the bill had been passed.  SZLVW confirmed that their lack of knowledge about the passing of the bill on 15 November 2006 and the presidential approval on 31 December 2006 or 1 July 2007 is not clear in their minds because of memory problems. 

14. The applicant wished to clarify the position in respect of Muslim League membership cards.  At the hearing the applicants indicated that they did not have PMLN membership cards with them in Australia.  However, they never indicated that they had never held such membership cards.  They received membership cards when they joined the Muslim League because that was a compulsory part of the joining the organisation.  The applicant stated that they received their cards in 2000 when they joined the PMLN.  When he was promoted to the position of Joint Secretary the organisation issued notification letters as proof of that appointment but did not issue new membership cards.  The applicant claims that those notification letters have been provided to the Tribunal.

15. The Tribunal again referred to the applicant’s assertion that he did not have a membership card. The Tribunal set out the evidence and concluded:

    Taking into account the evidence, the Tribunal does not accept the applicant displayed a knowledge of PML(N) consistent with his claimed role as Joint Secretary and his claimed involvement in some activities of the party, such as organising meetings and rallies. (CB 191.6)

16. The Tribunal dealt with evidence relating to the passing of the bill and the inconsistencies in dates on when it was supposed to have been passed.  It also dealt with the connection between when the protest rally in respect of that bill occurred and when they were detained (CB 194-195). 

17. The Tribunal then dealt with newspaper evidence and references to the alleged attack on the applicant’s family and its concerns about this issue (CB 195-196). 

18. The Tribunal then set out the difficulties that it had with the evidence of both the applicant and his brother on how they would deal with women’s rights and victims of rape.  SZLVW made oral submissions in an attempt to explain the answers given to the Tribunal.  However, the Tribunal findings in relation to this issue are a matter for it and not a basis for judicial review (CB 197). 

1. The Tribunal concluded in relation to the applicant’s involvement with the IHRC (CB 199) and also referred to additional documentary evidence provided by him in terms similar to evidence provided by his brother.  This included letters from the hospital and his employer which are generally similar to those of his brother’s. 

2. The judgment in SZIEW v Minister for Immigration & Citizenship [2008] FCA 522 tendered by SZLVW is not relevant to the way in which this Tribunal approached its task. This Tribunal dealt with the various pieces of the factual matrix provided by the applicant and his brother and came to a conclusion. It was not performing the exercise that appears to have been done by the Tribunal in SZIEW.  In that case, there was a rejection of certain evidence without a finding as to the credibility of the person giving that evidence, on the basis that it was first-hand hearsay and that the maker of the statement was not available to give direct evidence.  That situation does not arise in this matter which is clearly distinguishable from the situation in SZIEW.

3. The Tribunal dealt with the claimed membership of the IHRC and again it was concerned about the membership cards, the misspelling of the word “Norway” and the telephone number being one for the United Kingdom rather than for Norway. There is information on the organisation’s website that they do not have an office in Norway nor in the other cities which both the applicant and his brother said there were.

Grounds of review

1. The applicant filed an amended application which contained ten grounds of review, some of which were particularised.  These grounds are identical to those pleaded by the applicant’s older brother “SZLVW” (SYG9 of 2008) which have been addressed in that decision: SZLVW v Minister for Immigration & Anor [2008] FMCA 1199. I rejected all of those grounds for the reasons set out in that judgment. Neither the applicant nor his elder brother made any submissions to the Court in respect of these grounds but instead relied on the decision in SZIEW which I have addressed above.  In the circumstances I rely on my consideration of those ten grounds my judgment in SZLVW, in that none of those grounds identify a jurisdictional error.

Conclusion

1. The applicant is a self-represented litigant who appeared with the assistance of an Urdu interpreter.  Although the applicant has filed separate proceedings, in this Court he essentially relied upon the material presented by his elder brother and referred to above.  The applicant declined the opportunity to make any submissions but instead requested leave of the Court to allow his brother to speak on his behalf.  Both applicants participated in the Court sponsored legal advice scheme attending conferences with an advisor and receiving written advice.  The applicant took the opportunity to file an amended application however this was in identical terms to that of his brother’s.  On the advice of an unidentified third party, both applicants relied on a recent Federal Court decision which they believe was decided on a similar factual situation to their own.  This is unfortunate because the facts of that case are clearly distinguishable from the matters before this Court.  There has been no attempt to address any other aspect of the applicant’s claims for review.  

2. The solicitor for the first respondent assisted with written submissions in response to the amended application and I am satisfied that the issues identified in the application have been addressed and the oral submissions in response to the tendered decision have been of assistance.  This places an obligation on the Court to independently consider whether the argument based on material contained in the Court Book and in particular the Tribunal decision advances any claim of jurisdictional error.  I have undertaken that review and am satisfied that on a fair reading it is not apparent that any other ground of judicial review is apparent in the Tribunal’s decision making process.  Consequently the application should be dismissed with costs.

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.

Associate: 

Date:  29 August 2008