SZMDU v Minister for Immigration & Anor (No.2)
[2008] FMCA 1139
•16 July 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMDU v MINISTER FOR IMMIGRATION & ANOR (No.2) | [2008] FMCA 1139 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application dor review of RRT hearing affirming decision of a delegate of the Minister refusing to grant a protection visa – where applicant is in immigration detention – applicant a citizen of Pakistan claiming fear of persecution because of his political opinion – applicant arrived in Australia on a Bridging E visa and later applied for a protection visa – no reviewable error. |
| Migration Act 1958 (Cth), ss.424, 424A, 425, 474(2), 476 |
| Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 followed Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; (1996) HCA 6 referred to SZLHM v Minister for Immigration and Citizenship (2008) FCA 754 followed Abede v The Commonwealth (1999) 197 CLR 510 referred to SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 M100 of 2004 & Anor v Minister for Immigration and Multicultural and Indigenous Affairs (2007) FMCA 829 referred to |
| Applicant: | SZMDU |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 948 of 2008 |
| Judgment of: | Scarlett FM |
| Hearing date: | 16 July 2008 |
| Date of Last Submission: | 16 July 2008 |
| Delivered at: | Sydney |
| Delivered on: | 16 July 2008 |
REPRESENTATION
| Solicitors for the Applicant: | In Person |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
The Application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $5000.00 and I allow 6 months to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 948 of 2008
| SZMDU |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from Transcript)
Application
The applicant who is a citizen of Pakistan applies to the Court to review a decision of the Refugee Review Tribunal refusing him a Protection (Class XA) Visa. The decision was signed on 20 March 2008 and handed down on 25 March. The applicant is currently in immigration detention and has been since prior to these proceedings were commenced. He asks the Court for orders:
a)In the form of a declaration that the Tribunal decision is invalid, null and void;
b)An order in the nature of mandamus to redirect the Tribunal decision and order the Tribunal to take the matter for further consideration; and
c)An order in the nature of prohibition not to remove the applicant from Australia while the decision is pending.
The applicant claims that the Tribunal fell into error in 4 ways:
a)The Tribunal failed to give sufficient weight to the current situation in Pakistan;
b)The Tribunal overlooked the fact that when first leaving Pakistan for Australia the method chosen was the only one known at the time.
c)The Tribunal failed to follow the guidance on the assessment of credibility; and
d)The Tribunal failed to consider internet activity, ie blogs, as evidence.
Background
The background to the matter is that the applicant arrived in Australia on 28 July 2003; he did not apply for a Protection (Class XA) Visa until 27 November 2007. That application was refused by a Delegate of the Minister on 7 January 2008. The applicant claimed in his application for a visa that the reason he left his country was to settle outside his country, to study and then apply for permanent residence in Australia because it was no longer safe for him to live in his country.
He claimed that he did not know that he could apply for a protection visa until he came to the Villawood Detention Centre. He said that in Pakistan he was involved in many pro-democracy protests and demonstrations and he had participated in different anti-government political activities, and as a result was arrested by the police for the first time at a protest in Lahore in 2000. He claimed that he was detained, interrogated and ill treated and threatened with harm, or even death, on subsequent occasions.
The applicant forwarded a number of documents to the Delegate including a personal statement with a list of attachments, a copy of a police report, a copy of the Human Rights Watch Report on Pakistan and copies of on-line public forums. It had stated emergency in Pakistan democracy, democracy and tyranny.
The Delegate in the decision record accepted the applicant's claim that he was a citizen of Pakistan, considered Independent Country Information and decided that there were credibility issues relating to the applicant's claims. The Delegate said:
I have considered the information provided by the applicant and I am not satisfied that the applicant was or would be persecuted by the Pakistani authorities according to his alleged anti-government beliefs and actions. There are a number of factors that raise significant doubts as to the credibility of the applicant's claims and a genuineness of his fear under convention related grounds. These factors are discussed in the following paras[1].
[1] See Court Book at page 139
The Delegate considered the factual claims and went on to find:
I have significant doubts that the applicant has been truthful on all issues and considering his inability to provide plausible explanations to the above concerns I am not satisfied that his claims are genuine. The applicant's limited responses to significant issues has not satisfied me that he has presented an honest account of his protection visa claims, and the concerns expressed to him were not adequately addressed. On the basis of the above findings I am not satisfied that the applicant is a credible person[2].
[2] See Court Book at page 143
The Delegate was not satisfied that the applicant was a person to whom Australia has protection obligations for the grant of Protection (Class XA) Visa and refused the application on 7 January 2008. The applicant then applied to the Refugee Review Tribunal for a review of that decision and the application for review as received on 11 January 2008. The applicant did not provide any further documentary evidence to the Tribunal at that stage.
Refugee Review Tribunal
The Tribunal wrote to the applicant on 1 February 2008 inviting him to attend the hearing on 3 March. The Tribunal also wrote to the applicant on 6 February in a letter headed "Invitation to Comment on - Respond to Information in Writing". The letter invited the applicant to comment on, or respond to, information that the Tribunal considered would, subject to any comments or responses that he made, be the reason or a part of the reason for affirming the decision under review.
The letter then set out particulars of the information which referred to the applicant's arrival in July 2003 as the holder of a Student Visa; referred to the fact that he was granted further Student Visas; that his last Student Visa was granted in October 2005 and ceased to be in effect on 9 September 2006. The information included details of the applicant's application for a Bridging E visa to enable him to apply for a Skilled Migration Visa and the fact that he was later granted a Bridging E visa on departure grounds on 23 October 2006.
The information in the letter referred to the fact that the applicant did not depart the country before the expiry of his visa and became an unlawful non-citizen and was detained as a unlawful non-citizen on 9 November 2007. The information referred to the fact that the applicant did not apply for a Protection Visa until 26 November 2007 and covered also a variety of other matters about the applicant's dealing with the Department and invited the applicant to provide comments or response by 13 February 2008.
The letter also asked the applicant to provide certified copies and translations of certain documents that he had provided to the Minister's Delegate. It appears to me that this letter was intended to be written under the provisions of both s.424 and s.424A of the Migration Act. The Tribunal received a fax from the applicant indicating that he was unable to provide translations of the documents. He also later provided a submission, a copy of which can be found at page 186 to 191 of the Court Book.
He also provided a further submission which came from his migration agent that can be found in considerable detail in the Court Book. Attached to it were printouts of information from the internet. The applicant attended the hearing of the Tribunal. The Tribunal affirmed the decision of the Minister's Delegate not to grant the applicant a Protection (Class XA) Visa. In the decision record the Tribunal sets out the evidence from the Department's file and from the application for a Protection Visa.
The Tribunal referred to the applicant's interview by the Delegate on 11 December 2007 and the evidence before the Tribunal. The Tribunal referred to the s.424A and s.424 letter that the Tribunal sent to the applicant on 6 February 2008 and his response on 14 February 2008. The Tribunal also covered in some detail the applicant's evidence at the Tribunal hearing.
RRT decision
In its findings and reasons the Tribunal noted that the applicant had travelled to Australia on a Pakistani passport and claimed to be a national of that country. The Tribunal accepted that he was a national of Pakistan and assessed his claims against Pakistan as his country of nationality. The Tribunal noted the applicant's primary claim that due to his political activities and views in Pakistan and his participation in anti Musharraf and anti-government demonstrations he would be targeted by the authorities, and in particular the army and the intelligence forces, and persecuted.
The Tribunal noted that having regard to the applicant's evidence and other material that he presented it was prepared to accept that he had shown interest in political affairs of Pakistan and may have participated in political activities in Pakistan, including rallies, demonstrations and the distribution of pamphlets.
The Tribunal accepted that the applicant had contributed to the internet political discussion, however, the Tribunal found that any adverse attention that the applicant had suffered from the authorities was the direct result of his participation in individual political activities and not because he was targeted due to any other characteristic or profile or his overall political standing.
The Tribunal did not accept that the applicant had a significant profile whether it was a result of his own activities or through association with others which had brought him to the attention of the authorities. The Tribunal accepted that while the applicant may have been detained following rallies or activities it did not accept that he had been arrested or detained on other occasions as he had claimed.
The Tribunal considered the applicant's claims to have been arrested on four occasions and mistreated and had been threatened and warned not to engage in political activity. It accepted that he may have come to the attention of the authorities but did not accept that he was kept in detention or physically mistreated during detention. The Tribunal noted the applicant's claims that if he were to return to Pakistan he would continue to engage in political activities. It accepted that he may participate in political demonstrations and other activities in the future, however it went on to find:
However, the Tribunal is of the view that the recent changes in the political situation in Pakistan negate any existence of a real chance of persecution in the foreseeable future if you were to do so. The information cited above indicates that the political strength of President Musharraf has lessened considerably and that he no longer holds a parliamentary majority.
The Tribunal also went on to find:
The Country Information also suggests that following the elections Musharraf has been working in cooperation with the parliament and that his influence on the army has weakened. Further action is being taken by the senior officers of the army to restore the army's standing in the society by undoing the harm that occurred during the Musharraf years[3].
[3] See Court Book at page 387 - 388
The Tribunal went on to find that given the current political situation in Pakistan the applicant would be able to exercise his freedom of speech and association and express his political views and found there was no real chance that he would be persecuted for doing so. The Tribunal considers the applicant's claims of having participated in internet discussions and may be identified through those.
It noted, however, that at most he was identified by his first name and the Tribunal was of the view that that would not be sufficient for him to be identified. The Tribunal noted the applicant's claims that given the past political history of Pakistan there was no certainty as to what President Musharraf may do and that he may dismiss the parliament or otherwise curb political freedom. The Tribunal noted the applicant had provided Country Information concerning the past history and the current situation in Pakistan.
However, whilst acknowledging that information and the applicant's fear of the occurrence of those offences, the Tribunal was of the view that the applicant's proposition constituted a mere speculation and does not give rise to a real chance. The Tribunal referred to the decisions of Minister of Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559, 572 dealing with the question of whether a fear was well founded, being the situation where there was a real and substantial basis for it.
The Tribunal also referred to Minister of Immigration & Ethnic Affairs v Wu Shan Liang & Others (1996) 185 CLR 259, 253. The Tribunal noted the applicant's claims that he may also be of interest to the authority because false charges had been laid against him because he was forced to sign a confession. The Tribunal did not accept that claim. The Tribunal also noted the applicant's willingness to remain in Pakistan and to complete his university course. It felt that was inconsistent with the existence of a genuine fear of persecution arising from false charges or other matters that the applicant had claimed.
The Tribunal also expressed concern about the fact that the applicant had returned to Pakistan in 2005 and spent several weeks there. The Tribunal noted documents that the applicant produced but because it had already rejected the applicant's claims on the basis of his subsequent conduct, and noting also information about the availability of fraudulent documents in Pakistan, placed no weight on those documents.
The Tribunal did not accept there were outstanding charges against the applicant that would lead to his arrest and detention and found that he had not been truthful with respect to those claims. The Tribunal referred to a medical report that the applicant had presented but found that it did not indicate whether the problem, in respect of an operation on his leg, arose as a result of torture which the applicant claimed and did not consider that the medical report was probative evidence of the physical harm the applicant had suffered.
The Tribunal stated that having considered the applicant's claims singularly and cumulatively it found there was no real chance that the applicant would face persecution for a convention reason, if he were to return to Pakistan at that time or in the reasonable foreseeable future. The applicant commenced proceedings in this Court on 16 April 2008 by filing an application and an affidavit in support.
There are four grounds. The applicant has prepared those grounds himself and when the - and the application came before the Court for the first time on 12 May 2008. At that stage I made directions relating to preparation of a Court Book, filing and serving affidavits and granting leave to file and serve an amended application. I listed the matter for final hearing on 5 June 2008.
The applicant did not file an amended application and prior to the hearing of 5 June indicated that he was seeking an adjournment to obtain legal assistance. I considered that application on 5 June and made the decision to grant the application noting the applicant was aware that he would remain in immigration detention during the period of the adjournment.
I listed the application for hearing today and the applicant has attended. He is still in immigration detention and, unfortunately for him, he has not been able to obtain the legal representation which he sought. The application has proceeded today on the basis of the original application which the applicant prepared. The applicant has received a copy of an outline of submission prepared by the lawyers for the first respondent Minister, filed and served on 29 March.
The applicant claims in his first ground that the Tribunal erred in failing to give sufficient weight to the current situation in Pakistan. The applicant was of the view that at the time of the Tribunal decision the Tribunal member had taken an overly optimistic view of the likely political situation in Pakistan.
He pointed out that the hearing took place shortly after the elections and that the views expressed by the Tribunal member as to what the Tribunal expected would be the political situation, particularly with the expected decline in the power of President Musharraf, had not come to pass. The applicant was strongly of the view that the political situation in Pakistan was very much business as usual. It is not hard to sympathise with that view.
The media in Australia in recent months have reported details of the political situation in Pakistan and there is much to be said for the applicant's claim that things do not appear to have improved very much. However, as I endeavoured to point out during the hearing, these claims are what is known as merits review. A review of the merits of the Tribunal's factual findings, and indeed much of what has been put to the Court, relates to events that have happened since the Tribunal made its decision. It is not uncommon for applications of this type to be made to this Court and, as I said, it is not hard to sympathise with them.
However, the Court does not have the power to undertake merits review of the Tribunal decision. This situation was addressed recently on appeal from this Court by Flick J in SZLHM v Minister for Immigration & Citizenship (2008) FCA 754 where his Honour said at paras. 8 and 9:
Left to one side is an apparent misapprehension on the part of the appellant as to the role of the Federal Magistrates Court. It simply was no part of the function of that Court to assess the merits of the claims being advanced. That was the task of the Tribunal not the Federal Magistrates Court. It is important for those who apply to the Federal Magistrates Court seeking review of decisions of the Refugee Review Tribuna,l and who subsequently seek to appeal to this Court, to understand that it is the Tribunal that resolves questions of fact. It is no part of the role of a Court conducting judicial review to trespass into the realm of reviewing the merits of an administrative decision the subject of review. Attorney General New South Wales v Quinn (1990) 170 CLR 1, Brennan J there observed at 35 6:
The duty and jurisdiction of the Court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If in so doing the Court avoids administrative injustice or error, so be it, but the Court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action to the extent that they can be distinguished from a legality are for the repository of the relevant power and subject to political control for the repository alone.
The confined jurisdiction entrusted to the Federal Magistrates Court is unequivocally set forth in s.476 of the Migration Act 1958 of the Commonwealth.
Section 476 of the Migration Act sets out that the Court has the same original jurisdiction in relation to migration decisions as the High Court has under para. 75(5) of the Constitution. The Court does not have jurisdiction in respect of a primary decision, or a privative clause decision or purported privative clause decision of the Administrative Appeals Tribunal, or a privative clause decision or a purported privative clause decision made personally by the Minister under s.501, s.501A, s.501B or s.501C, or a privative clause decision or purported privative clause decision mentioned in sub-s.474(7).
The fact is, however, that the Court has a limited jurisdiction which does not involve a re-hearing or having a second guess of the factual situation as has been made quite clear by the Federal Court in SZLHM v Minister of Immigration and Citizenship. Accordingly the applicant's first ground must fail. The applicant's second ground claims that the Tribunal member overlooked the fact that, when first leaving Pakistan for Australia, the method chosen was the only one known at the time.
What this means is that the applicant chose to finish his degree in Pakistan so that he can apply for a Student Visa to Australia to undertake a university course in Australia, and that is what he did. What he has claimed is that he was not aware that he could apply for a Protection Visa under the Migration Act. The Tribunal, however, considered that particular situation. Unfortunately for the applicant, the Tribunal did not accept that was a persuasive reason and took a different view of what it described as the applicant's willingness to remain in Pakistan and to complete his course. The Tribunal said:
The Tribunal considers the applicant's willingness to remain in Pakistan, and to complete the course, to be inconsistent with the existence of a genuine fear of persecution arising from false charges or other matters claimed by the applicant[4].
[4] See Court Book at page 389
Now the applicant has clearly taken the view that the Tribunal's decision is wrong, but if it is wrong it is wrong on the facts, and again this Court does not have the jurisdiction to undertake a review of the Tribunal's factual decision. So long as there is evidence upon which a finding is open to an administrative decision maker then there will be no jurisdictional error.
Even if the Tribunal makes a factual error this is not a jurisdictional error per se[5]. It must follow therefore that the applicant's second ground fails. The applicant's third ground is that the Tribunal failed to follow the guidance on the assessment of credibility. There are no particulars provided of that claim but it is clear that the Tribunal made some adverse findings relating to credibility, as did the Delegate.
[5] See Abede v The Commonwealth (1999) 197 CLR 510
The creditability of the applicant's claims was clearly an issue before the Tribunal and in my view there is no failure under s.425 from that point of view in respect of the issues raised by the High Court of Australia in SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs[6]. I am referred by the solicitor for the Minister, Mr Pinder, to a decision relating to the Migration Review Tribunal and Refugee Review Tribunal guidance on the assessment of credibility, a document dating from October 2006.
[6] SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152
This is a decision of Riley FM in the Federal Magistrates Court in Melbourne which is M100 of 2004 & Another v Minister for Immigration & Another (2007) FMCA 829. This was a decision which referred to two sets of guidelines, first the Department of Immigration & Multicultural Affairs, Refugee and Humanitarian Visa Applicants Guidelines on Gender Issues for Decision Makers, and second, the Migration Review Tribunal and Refugee Review Tribunal Guidance on the Assessment of Credibility October 2006. At paragraph 90 of the decision her Honour said:
The Gender Guidelines were prepared by public servants for the guidance of other public servants. It is axiomatic that such a document cannot bind the Tribunal or fetter its discretion. The parliament has invested the Tribunal with the power to determine refugee claims. The parliament in s.499 of the Act has given the Minister the power to publish binding guidelines. The Gender and Credibility Guidelines were not published under s.499 of the Act and are not binding on the Tribunal[7].
[7] (2007) FMCA 829 at para 90
In paragraph 103 her Honour again referred to the Gender Guidelines and the Credibility Guidelines. Her Honour said:
To the extent that the Gender Guidelines or the Credibility Guidelines require the Tribunal to afford procedural fairness, or consider the evidence as a whole or refrain from acting on a gut feeling, they simply require compliance with the existing law. A failure by the Tribunal in any of those respects would result in jurisdictional error, not because the guidelines were ignored but because the existing law was not applied. In my view the Gender and Credibility Guidelines are not relevant considerations and any failure by the Tribunal to have regard to them would not constitute jurisdictional error.
In my view the decision in M100 of 2004, which does not appear to have been the subject of any appeal, is a decision that is on point and whilst it is not binding on this Court the doctrine of judicial comity requires that I should follow it, unless I am satisfied that it is plainly wrong. I am not satisfied that it is plainly wrong and in my view I should follow it.
In this case before me there is no indication that the Tribunal did not follow the guidance on the assessment of credibility and in any event, even if it had, that would not of itself constitute a jurisdictional error. It must follow that this ground must be dismissed. The fourth ground claims that the Tribunal failed to consider the internet activity (blogs) as evidence. It appears, however, that this is not the case. The Tribunal did consider the printouts of the internet discussions in which the applicant had taken place and made a specific finding. The Tribunal said:
The Tribunal accepts that the applicant had contributed to the internet political discussion[8].
[8] See Court Book at page 386
The applicant may be of the view that the Tribunal did not give sufficient weight to that evidence but the weight given to evidence is a matter for the Tribunal. It is not, however, a fact that the Tribunal failed to consider the evidence completely and it is not a situation, that I can see, that the Tribunal failed to consider an integer or a key part of the applicant's claim. It follows that the grounds of review enunciated by the applicant do not establish jurisdictional error.
I am mindful of the fact that the applicant is not legally represented in these proceedings and it is a misfortune that he has not been able to obtain legal representation. For that reason I have read through the Tribunal decision, independently of either the applicant's application or the submissions on behalf of the respondent Minister, in order to ascertain whether any other arguable case of jurisdictional error can be made out. I am unable to discern any.
It follows therefore that in the absence of jurisdictional error the Tribunal decision is a privative clause decision as defined by sub-s.474(2) of the Migration Act. Privative clause decisions are final and conclusive and are not subject to declaration or orders in the nature of certiorari or mandamus. Unfortunately for the applicant his application must be dismissed.
There is an application for costs on behalf of the 1st respondent Minister in the sum of $5000. The applicant has not been successful in his claim and, in matters of this nature, costs follow the event. In my view it is appropriate that a costs order be made and it is difficult to challenge an order for costs in the sum of $5000, bearing in mind there have been three Court events. I accept the fact that the applicant has been in immigration detention for a number of months, consequently he has not been able to work and has not been able to derive any income.
His capacity to pay an order for costs would be very low, to put it mildly, even if there is any capacity at all and there is no evidence that there is. It would seem to me that an order for costs is of very little value, as far as the Minister is concerned, but in my view I should make such an order. However, in the circumstances I will allow six months to pay. That may well be academic.
I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: A. Coutman
Date: 12 August 2008
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