SZLZY v Minister for Immigration

[2008] FMCA 1125

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLZY v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 1125

MIGRATION – Review of decision of RRT – where no error exposed in dispositive findings.

Migration Act 1958, s.424A

SZBEL v Ministerfor Immigration [2006] HCA 63

Applicant: SZLZY

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 450 of 2008

Judgment of: Raphael FM

Hearing date: 30 July 2008

Date of Last Submission: 30 July 2008

Delivered at: Sydney

Delivered on: 30 July 2008

REPRESENTATION

For the Applicant: In person

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. Application dismissed.

2. Applicant to pay the First Respondent's costs assessed in the sum of $3,500.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 450 of 2008

SZLZY

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of Pakistan. He arrived in Australia on 28 June 2007 having jumped ship in Adelaide. He applied to the Department of Immigration and Citizenship for a protection (Class XA) visa on 13 July 2007.  On 9 October 2007 a delegate of the Minister declined to grant a protection visa and the applicant sought review from the Refugee Review Tribunal. The Tribunal held a hearing which the applicant attended and on 10 January 2008 the Tribunal determined to affirm the decision under review and handed that decision down on 24 January 2008.

2. The ground upon which the applicant claimed to be a person to whom Australia owed protection obligations was that he had fallen foul of the TNSM, a radical fundamentalist Islamic group, which controlled the society in Swat and other districts throughout the North West Frontier Province where he lived for approximately two months every year when he came off his duties as a seaman.

3. The applicant claimed that, for some very considerable period of time, he had demonstrated liberal tendencies, in particular he championed the right of girls to be educated and to be able to participate fully in their communities.

4. He believed that the TNSM had made attempts to force him to conform to its religious standards with which he did not agree. He claimed that in January 2007 six men came to his house and warned him to stop supporting the NGO workers who were distributing a polio vaccination in the village. He insisted on his nieces and nephews being immunised and claims that he was punched to the ground and kicked. He believed he would have been killed if his neighbours had not intervened. The applicant claimed that in March 2007 he had another argument with religious extremists when he was taking his nieces to school. The applicant believes that, if he returned to Pakistan, he would be killed or forced to join the TNSM and fight a Jihad.

5. When the applicant appeared before the Tribunal he confirmed these claims and he provided the Tribunal with a copy of a document [CB 119] which came from a clinic and purported to corroborate his story about being cut in the head because of his opposition to the TNSM.  The applicant also produced some newspaper cuttings.

6. The Tribunal questioned the applicant about the various incidents that he had described and about his decision to leave Pakistan.  It took up with him his claim that he could not relocate to another part of Pakistan because the TNSM would find him and that the State could not provide him with adequate protection if he returned.  The Tribunal put to the applicant its view that he was not of sufficient interest to the TNSM for them to follow him to another town and noted that the government had banned the organisation and launched a military offensive against it.

7. In its findings and reasons, commencing at [CB 134], the Tribunal took the view that the applicant's evidence was vague and lacking in detail and, in some cases, contradictory.  Whilst accepting that the applicant might have moderate views in relation to the education of girls and vaccinations, it did not believe that he had spoken out about these matters or that he would do so if he returned to the country.

8. The Tribunal was not satisfied that he was a victim of the TNSM and, for the reasons expressed, gave no weight to the pharmacy document, noting that the pharmacist was not a witness to the event but just recorded the account given to him by the applicant's brother.

9. Given that the Tribunal was not satisfied that the applicant was a person to whom Australia owed protection obligations, it was not strictly necessary for it to consider the question of relocation. However, it did so. It came to the view that, as a single man with no obligations to remain in his home village and as a seaman who was out of the country for many months at a time, relocation would not be inconvenient. The Tribunal did not think that the TNSM would follow him to any new place of abode.

10. The Tribunal also considered the question of adequacy of State protection. The Tribunal found that as the applicant was of no real interest to the extremists the issue of State protection did not arise but then opined that, if the applicant did prove to be a victim of violence, that would make him a victim of civil disorder and not necessarily a refugee from persecution. The Tribunal concluded that it was not satisfied that the authorities would fail to provide him with protection should he return to Pakistan. Again, this conclusion was not strictly necessary after the Tribunal had concluded that it doubted the grounds upon which the applicant had claimed he was a person of interest to the TNSM in the first place.

11. Finally, the Tribunal considered the question of future harm: 

    “As discussed above, the Tribunal is mindful of the situation in Pakistan and it considers it not implausible that the applicant may become the victim of a random act of violence; however, this does not make him a refugee from persecution.  The applicant has not satisfied the Tribunal that he was the subject of particular adverse interest by the TNSM or that he was beaten by them in the past; or that  even if it was, that the attacks were not random as opposed to have been targeted at him specifically, despite his claims to the contrary.  The Tribunal is further not satisfied that he has publicly expressed his opposition to the TNSM directives in the past or that he will do so in the future; not because he is afraid of persecution by the TNSM if he does, but rather the Tribunal finds he would not express such views if he returned to Pakistan because they are not sufficiently strong or even genuinely held.”

12. In his amended application filed with this court on 30 May the applicant claimed that:

    “The Refugee Review Tribunal did not make the decision according to the Migration Act 1958 because the Tribunal did not give adverse information written to the applicant for comments, which constitutes jurisdictional error under s.424A of the Act.”

13. Eight particulars are then provided. These, with one exception, all relate to conclusions reached by the Tribunal. The conclusions are not information for the purposes of s.424A of the Migration Act 1958 (the “Act”); SZBEL v Ministerfor Immigration [2006] HCA 63. The one area in which there does appear to be some information used by the Tribunal is in relation to its acknowledgement of the situation in Pakistan which might render the applicant a victim of randomised acts of violence. However, such information would appear to be independent country information of the type which is exempted from the provisions of s.424A by the provisions of s.424A(3)(a).

14. Before me today, the applicant spoke at some length but his remarks seem to me to be confined to his personal position and the reasons why he should be considered to be a refugee. As I attempted to explain to him this court is not in a position of being able to grant him a visa nor to consider the factual elements of his claim for the purposes of providing him with a merits review. The court is limited to considerations of the manner in which a Tribunal reached its decision.  I have myself considered the Tribunal's decision and am of the view that, certainly in relation to the effective part thereof, namely, the failure to be satisfied that the applicant is a person to whom Australia owed protection obligations because it could not be satisfied that the past incidents of harm had occurred or would occur in the future, the Tribunal approached its task in an orthodox manner and without falling into jurisdictional error.

15. I dismiss the application. I order that the Applicant pay the First Respondent’s costs which I assess in the sum of $3,500.00.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date: