SZMEI v Minister for Immigration
[2008] FMCA 971
•3 July 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMEI v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 971 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision affirming a decision of the delegate of the Minister not to grant a protection visa to the applicant – applicant a citizen of Pakistan – relocation – whether the Tribunal fell into jurisdictional error by failing to have regard to the evidence about the reasonableness of relocation within Pakistan – no reviewable error. |
| Migration Act 1958 (Cth), ss.424A, 425, 474 |
| SZATV v Minister for Immigration & Citizenship [2007] HCA 40; 237 ALR 634 followed. SZBEL v Minister for Immigration &Multicultural & Indigenous Affairs [2006] HCA 63 followed. |
| Applicant: | SZMEI |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1008 of 2008 |
| Judgment of: | Scarlett FM |
| Hearing date: | 3 July 2008 |
| Date of Last Submission: | 3 July 2008 |
| Delivered at: | Sydney |
| Delivered on: | 3 July 2008 |
REPRESENTATION
| Applicant: | In Person |
| Counsel for the Respondent: | Ms Clegg |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The Application is dismissed
The Applicant is to pay the First Respondent's costs fixed in the sum of $4,000.00.
I allow four (4) months to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1008 of 2008
| SZMEI |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
This is a case about relocation. As such, it is different from many of the applications to review decisions of the Refugee Review Tribunal that come before this Court.
The Applicant asks the Court to review a decision of the Refugee Review Tribunal that was signed on 28th March 2008 and handed down on 8th April 2008. The Tribunal affirmed the decision of a delegate of the Minister not to grant the Applicant Protection (Class XA) visa.
The Applicant asks for a writ of certiorari quashing or setting aside the decision of the Refugee Review Tribunal and an order that no action should be taken to remove him from Australia while the decision is pending.
The Applicant has filed an amended application in which he sets out five grounds as to why the Tribunal made a jurisdictional error. I summarise them in this way:
a)The Tribunal did not apply proper procedure to assess the claim because it expressed some doubts regarding his claim about his involvement with NGO and the threats from TNSM, but did not ask the right questions to the Applicant to remove its doubt.
b)It wrongly mentioned that the Applicant was not able to give much detail at the hearing regarding his activities which put him at risk, but he had provided documentary evidence to support his claim.
c)It observed that it had difficulty accepting his claim that his life was at risk from the TNSM everywhere in Pakistan. Because people are free to live anywhere within Pakistan does not mean that people are safe to live anywhere within Pakistan.
d)The Tribunal did not specify the information in the letter which it may not accept as evidence and the Applicant did not understand the letter that was sent to him on 21st January 2008.
e)The Tribunal rejected the Applicant's claim on the basis of relocation which was not a proper assessment of his claim because if the Applicant engaged himself to continue his activities anywhere in Pakistan his life would be in danger again.
The Minister has filed a Response opposing the orders that are sought. To understand this case it is helpful to consider briefly the Applicant's background and the background to the matter generally.
Background
The Applicant arrived in Australia on 10th July 2007. He applied for a Protection (Class XA) visa on 15th August 2007. His application for a visa was refused by a delegate of the Minister on 19th October 2007. The delegate considered the Applicant's claim that he would be harmed if he were to return to Pakistan because he campaigned against the activities of a religious extremist group known as the TNSM.
The delegate considered country information about this group and indeed accepted as plausible that the Applicant was menaced and threatened by members of the TNSM. The delegate accepted that the TNSM has a strong presence in the area of Swat where the Applicant comes from. The delegate considered that the TNSM may be gaining strength, but there was no evidence that it was beyond the control of the national government of Pakistan, and whilst there had been instances of security and law enforcement agencies being unable to carry out a mission to stop the group, it could not be said that the Pakistani government was totally incapable of checking the TNSM.
The delegate considered whether it was reasonable for the Applicant to relocate within Pakistan to avoid the threats and the violence from the TNSM which he fears. The delegate noted that the TNSM was influential only in areas near to the border with Afghanistan and there was no information to suggest that the TNSM exerted any influence in the east or south of the country.
The delegate expressed the view that the Applicant may be able to relocate to Karachi or even Islamabad to protect himself from this group. The delegate found:
“As effective protection is available to the applicant through relocation, his fear of persecution cannot be said to be well- founded.”[1]
[1] See Court Book at page 55.
Application to the Refugee Review Tribunal
The Applicant applied to the Refugee Review Tribunal for review of that decision. He did so with the assistance of his migration agent.
The Tribunal received the application on 14th November 2007.
No additional documentation was provided at that stage. The Tribunal contacted the Applicant's migration agent who is the authorised recipient of the Applicant on 15th November 2007 to acknowledge receipt of the application. On 30th November the Tribunal contacted the agent by letter to invite the Applicant to attend a hearing of the Tribunal on 14th January 2008.
The Applicant's migration agent completed the Response to Hearing Invitation indicating that the Applicant did wish to attend and provided to the Tribunal a number of documents including country information that related to the Applicant's own claim and to the situation in the Swat area and the nearby area. This included a considerable number of newspaper reports.
The Applicant attended the hearing of the Tribunal that took place on 14th January 2008. He gave evidence with the assistance of an interpreter.
The Applicant's migration agent wrote to the Tribunal in a letter received the day after the hearing containing a submission and a number of documents in support of the Applicant's claim, some of which have been translated into English, some of them, such as newspaper items, have been printed in English.
The Tribunal wrote to the Applicant on 21st January 2008. That letter was 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 be, subject to any comments or response that the Applicant made, the reason or the part of the reason for affirming the decision under review.
The letter set out a number of items of information and explained to the Applicant what the relevance of that information was. The letter said, in part:
“The relevance of this information, when applied to the evidence above, is that, even if the Tribunal finds you are facing localised persecution from the TNSM in Mohilla Balakhti, Kuza Bandai or in Swat generally or in the NWFP generally, the Tribunal may find that the TNSM would not seek you beyond that province.
The Tribunal may then find that you could live safely elsewhere in Pakistan, in cities which are not located in that Province, such as Islamabad, or even further afield in a city such as Karachi.”[2]
[2] See Court Book at page 143.
The letter then went on to give further information, including the Tribunal's conclusions about the Applicant's circumstances to deal with the question as to whether relocation in Pakistan was reasonable.
The letter invited the Applicant to provide comments or responses in writing by 4th February 2008. The Applicant's migration agent wrote to the Tribunal on 1st February 2008 making a request for an extension of time.
The Tribunal replied on 4th February 2008, agreeing to the request for an extension of time until 3rd March 2008. The Applicant had provided various materials to the Tribunal which handed down its decision on
8th April 2008. A copy of the Tribunal decision record can be found in the Court Book at pages 161 through to 177.
The Tribunal’s Decision
The Tribunal affirmed the decision not to grant the Applicant a Protection (Class XA) visa.
In the decision record the Tribunal considered the Applicant's claims and evidence taken from the Department's file, from material referred to in the Delegate's decision and other material. The Tribunal also considered the Applicant's evidence at the hearing before the Tribunal on 14th January 2008 and summarised that evidence in some detail which can be found at pages 165 through to 170 of the Court Book.
I note that at paragraph [57] of the decision on page 170 the Tribunal said that it would give the Applicant 28 days to provide any further information which might support his claims in that regard. The Applicant is reported to have told the Tribunal that he was not sure there would be any more information, that the Tribunal said it would give him 28 days any way. The Tribunal noted the submission that it received on 15th January 2008 from the Applicant's migration agent, together with copies of newspaper articles which had in fact been handed to the Tribunal at the hearing.
The Tribunal decision record considered Independent Country Information about the TNSM whose name can be translated into English as “Movement for the Enforcement of the Islamic Laws”. The Tribunal considered that information under the subject of formation of that body, its ideology and objectives, its leadership structure and headquarters, its area of operation and its activities and incidents. The Tribunal also considered country information about freedom of movement within Pakistan and access to major cities like Islamabad, Lahore or Karachi.
The Tribunal’s Findings and Reasons
The Tribunal's findings and reasons are set out on the decision record at pages 173 through to 177. The Tribunal accepted that the Applicant is a national of Pakistan based on his Pakistani passport. The Tribunal noted the Applicant's claims that he would be killed by the group known as the TNSM should he return to Pakistan and noted that this claim related to a threat which had arisen because of the Applicant's support for a non‑government community organisation CCCB in his home town village.
The Tribunal considered the Applicant's evidence and the Independent Country Information and made a finding that the Applicant may be at risk of serious harm in the area where he came from, particularly from the TNSM. The Tribunal made this finding:
“On the basis of the independent country information, the Tribunal accepts that conditions in Swat and the NWFP generally are volatile and that there is a great deal of religion-based violence there. The Tribunal also accepts that non-government agencies, and local people who assist them, may be at risk of serious harm in that area, especially from the TNSM, which the Tribunal accepts is active in the applicant's home town and environs.”[3]
[3] See Court Book at page 174
The Tribunal went on to express some doubts about the genuineness of the Applicant's claims as to his involvement with this NGO and the threats from the TNSM and did comment that he was not able to give much detail at the hearing, what activities he undertook to assist this group, the CCCB and found that there was some inconsistency in the Applicant's evidence as to when he became involved in it.
Notwithstanding these doubts, the Tribunal did accept his claim of being at risk. It went on to say:
“However, the applicant has provided documentary evidence to support his claim of being at risk of serious harm from the TNSM in his home town in Swat. There was also his oral evidence of the recent bombing of the police station and that his father had reported that things were still bad there and that the TNSM were still looking for him. The Tribunal has no way of testing the veracity of the supporting documentation, but given the generally credible version of events the applicant gave, the Tribunal, is prepared to accept that the applicant is at risk from the TNSM in his village of Mohillah Balakhti, Kuza Bandai Village in Swat. The Tribunal is also prepared to accept that he is at risk in the entire Swat area and NWFP area, given the conditions there at present. The Tribunal thus accepts that the applicant has a fear of serious harm in NWFP.”[4]
[4] See Court Book at page 174
Having made that finding, however, the Tribunal stressed that that finding was localised and did not apply to the entirety of the Applicant's home country. The Tribunal said:
“However, the Tribunal has difficulty accepting the applicant's claims that his life is at risk from the TNSM wherever in Pakistan.”[5]
[5] Ibid
The Tribunal then went on to consider Independent Country Information. It considered various letters that the Applicant had produced. It was not prepared to accept those letters as accurate as to the risk faced by the Applicant in all of Pakistan. It also considered the Applicant's evidence of his own actions and the news articles and other documents which the Applicant had provided. The Tribunal did not accept certain parts of the Applicant's evidence that the TNSM had issued a kill warning in all of Pakistan and were currently searching nationally for the Applicant. The Tribunal went on to find:
“On the evidence before it, the Tribunal concludes that the applicant could relocate and live safely in other parts of Pakistan. As to whether relocation in Pakistan is reasonable in the applicant's particular circumstances, the Tribunal put to the applicant in writing that it was reasonable for him to relocate because he would not be at risk of persecution on re-entering Pakistan by any number of major cities to access safe areas and on his own evidence.”[6]
[6] See Court Book at page 175
The Tribunal then set out a number of factors which it considered, firstly, that the Applicant was a single man, without a family responsibility, he was a seaman who spent much of the year from Pakistan, is used to being away from his home village. He was familiar with a major Pakistani city, Karachi. He spoke Pashtu and Urdu which is the official language of Pakistan which would assist him in finding employment and accommodation in Pakistan and that he was a resourceful man as demonstrated by his travel unassisted from Perth to Sydney whilst not speaking the English language.
The Tribunal noted that in the Applicant's written response, the Applicant did not dispute any of the reasons as to why it was reasonable for him to relocate. It was for those reasons that because the Tribunal had concluded that the Applicant could reasonably relocate within Pakistan that meant that he did not have a well-founded fear of persecution in his country of nationality at that time or in the reasonably foreseeable future. The Tribunal affirmed the decision not to grant the Applicant a Protection (Class XA) visa.
Application for Judicial Review in this Court
The Applicant commenced proceedings in this Court by filing an application and an affidavit in support on 22nd April 2008. He filed an amended application on 13th June 2008. He filed his written submissions on 23rd June 2008. The lawyers for the Minister filed a written outline of submissions on 27th June 2008 which had been drafted by Ms Clegg of counsel.
The Applicant attended Court and told the Court that relocation in Pakistan would offer a free life for people who do not have any involvement in things, but wherever he went in Pakistan he would be pursued by the TNSM. Later he said that in his own village he had his family and his house property but if he had to go somewhere else in Pakistan he would not have those things and he would be more in danger.
Dealing with the five grounds of jurisdictional error, it appears to me with respect that the first two grounds relate to the Tribunal's consideration as to whether the Applicant had a reasonable fear of persecution for a Convention reason.
Ground 1
Ground 1 claims the Tribunal did not apply proper procedure to assess the claim because it expressed some doubts regarding his claim about his involvement with the NGO and the threats from the TNSM. That is true, but notwithstanding that, the Tribunal did accept that the Applicant was at risk from the TNSM, at least in the areas that it discussed. As Ms Clegg of counsel submitted, the ground did not take the Applicant very far because it was dealing with a matter that the Tribunal had already ruled in his favour.
Ground 2
Similarly, the second ground claiming that the Tribunal fell into error when it wrongly mentioned that the Applicant was not able to give much detail at the hearing regarding his activities, whilst he had provided documentary evidence, this too was a ground which goes to a matter that the Tribunal has already decided in the Applicant's favour. Despite those documents, the Tribunal did find that at least in the area to which it referred that the Applicant was at risk from the TNSM and this was for a Convention reason.
So grounds 1 and 2 do not assist the Applicant because they are not dealing with the issue that persuaded the Tribunal that the Applicant's claim should not be accepted. As I said in the beginning, this is a case about relocation.
The Applicant's third, fourth and fifth grounds do deal with that point.
Ground 3
Ground 3 complains that the Tribunal said that it had difficulty accepting his claim that his life was at risk from the TNSM everywhere in Pakistan. As he said, people are free to live anywhere within Pakistan, but that does not mean that they can safely live anywhere in Pakistan.
This, in effect, is a challenge to the Tribunal's factual finding on the relocation issue. But that in itself is really a matter for the Tribunal.
It is well-established that the finding of fact is a matter for the Tribunal and so long as there is evidence upon which the Tribunal could be satisfied then the Court will not interfere in judicial review. The Tribunal made its findings based on Independent Country Information.
Ground 4
The fourth ground is a complaint about the Tribunal's letter which was sent to him on 21st January 2008. There are two bases to that ground:
a)First, that it did not specify the information in the letters which it may not accept as evidence, and
b)Second, that the Applicant did not understand the letter.
The letter was written to comply with the provisions of s.424A of the Migration Act. It dealt specifically with the issue that was troubling the Tribunal which was whether the relocation in Pakistan was reasonable for the Applicant in his circumstances. The letter set out the information that the Tribunal considered it was relevant and set out the reasoning based on the evidence that it would apply or that it could apply, subject to anything that the Applicant had to put to make a finding that it may or may not be reasonable for the Applicant to relocate to another part of Pakistan.
The letter, with respect, appears to be clear, from my point of view and it is surprising that the Applicant was not able to obtain the assistance of his migration agent and after all the letter had been addressed to the Applicant's migration agent as the authorised recipient in order to understand the meaning of the letter. The other claim relates to the statement that can be found at page 143 of the Court Book within the s.424A letter:
“The Tribunal may not accept the evidence contained in the letters from the organisations that you have provided which state you are at risk anywhere in Pakistan as these letters provide no evidence nor is there any available independent country information to support the conclusion that they have come to.”[7]
[7] See Court Book at page 143.
Clearly the Tribunal is referring to the letters that the Applicant has provided and whilst the Tribunal made it clear that it was accepting of his claim to have a well-founded fear of persecution by the TNSM within his local area it was not accepting the broad basis of the claim that the Applicant's life would be at risk right throughout Pakistan.
An examination of the copies of the letters provided that appear in the Court Book show that there are three letters which quite clearly make a claim or an assertion that the Applicant's life would be in danger throughout Pakistan. They appear at pages 119, 120 and 121. The first of those letters at page 119 says, amongst other things:
“He went away from Pakistan to save his life. His life is in danger here in his Pakistan. I suggest him to live abroad.”[8]
The next letter says:
[8] See Court Book at page 119.
“His life is in danger in Pakistan and whenever he returns the TNSM activists will kill him.
I believe that he could not come back to Pakistan, his life is not secure here.” [9]
The third letter finishes by saying:
“His life is in danger here in Pakistan and I advise him to live abroad.”[10]
[9] See Court Book at page 120.
[10] See Court Book at page 121.
Those clearly are letters that the Tribunal considered, but did not consider the assertion that the Applicant's life would be in such danger from the TNSM that he could not relocate anywhere in Pakistan and the Tribunal made the criticism that there was just no evidence to support that. That is what that letter means and, in my view, it is an appropriate use of a letter written under s.424A of the Migration Act.
Ground 5
The fifth ground is that the Tribunal made a jurisdictional error by rejecting his claim on the basis of relocation because if he engaged himself to continue his activities anywhere in Pakistan his life would be in danger again. That is, as was put to me by counsel for the Minister, a merits review claim. It is a challenge to the Tribunal's factual finding.
Considerations
It is important, bearing in mind that this is a case about relocation, to look at the law and how it stands in connection with a relocation finding. It is quite clear from the decision that this was a matter uppermost in the mind of the Tribunal Member. The fact that the Tribunal wrote to the Applicant its s.424A letter of 21st January 2008 dealing specifically and in some detail with the question of relocation indicates that this was a matter that the Tribunal was considering very seriously.
Indeed, the High Court has recently reconsidered the question of relocation in the decision SZATV v Minister for Immigration & Citizenship. In the judgment of Gummow, Hayne and Crennan JJ their Honours said at [23] and [24]:
“[23] The Minister framed the issue, for a situation such as that presented by this appeal, as being whether it be reasonable, in the sense of practicable, for the appellant to relocate to a region where, objectively, there is no appreciable risk of the occurrence of the feared persecution. This formulation does not suffer from the defects urged by the appellant. It does not turn upon a "hypothetical assumption", nor does it prevent account being taken of the presence of a subjective fear of persecution, nor does it treat the presence of a "safe area" within the country of nationality as determinative of the existence of a well-founded fear of persecution.
[24] However, that does not mean that, without more, the formulation by the Minister is sufficient and satisfactory. What is "reasonable", in the sense of "practicable", must depend upon the particular circumstances of the applicant for refugee status and the impact upon that person of relocation of the place of residence within the country of nationality.”[11]
[11] [2007] HCA 40; 237 ALR 634
Now, turning to the Tribunal's decision, it is significant that the Tribunal addressed this particular question. The Tribunal used the phrase that quite clearly emerges from [24] of SZATV. The Tribunal said in paragraph 74 of its decision:
“As to whether relocation in Pakistan is reasonable in the applicant's particular circumstances, the Tribunal put to the applicant in writing that it was reasonable for him to relocate because he would not be at risk of persecution and re-entering Pakistan via any number of major cities.”[12]
[12] See Court Book at page 175.
What the Tribunal did was consider Independent Country Information about Pakistan in general and the TNSM in particular and it considered the Applicant's evidence, that is, his evidence to the Tribunal and the documentary evidence which he had provided. The Tribunal then put certain matters to the Applicant in its s.424A letter and in the decision the Tribunal then set out the factors at page 175 as to why it considered that relocation within Pakistan would be reasonable in the particular circumstances of the Applicant.
True it is that the Applicant disputes that. The Applicant has asserted that he is at risk throughout Pakistan. The Tribunal on considering the evidence has arrived at a different conclusion.
Conclusion
In my view, it was open to the Tribunal to arrive at the conclusion that it did because there was evidence to support it and, in my view, the Tribunal has applied the correct test for consideration of relocation which has been recently reaffirmed by the High Court of Australia in SZATV.
In my view, the Applicant has not made out jurisdictional error. He is not legally represented, but he has had legal advice from a lawyer on the legal advice panel operated by the RRT. I accept, however, that he is not legally represented and I have read through the Tribunal decision and the supporting material myself in order to ascertain whether any other arguable case for jurisdictional error may be made out.
I am certainly of the view that s.424A of the Act has been complied with. I am of the view that s.425 has been complied with. The Tribunal did invite the Applicant to attend a hearing. The Tribunal, in my view, gave the Applicant more than sufficient time as is required.
The invitation to the hearing was sent out on 30th November 2007 and the hearing was scheduled for 14th January 2008. That is a period of approximately 6 weeks, which is more than sufficient notice.
The Applicant was provided with the assistance of an interpreter at the hearing. It happens at times and circumstances as set out by the High Court of Australia in SZBEL v Minister for Immigration &Multicultural & Indigenous Affairs[13] that procedural fairness at the hearing is not granted if issues that are not made clear to the Applicant then arise. This is a case, however, where no such criticism can be made.
[13] [2006] HCA 63
It is quite clear from the delegate's decision that relocation was at the very least a major and significant issue in the delegate arriving at the decision to refuse the application for a visa. It was this decision that the Tribunal considered in a considerable amount of detail at the hearing, in its s.424A letter and in its assessment of the evidence. There can be no finding of a failure to provide procedural fairness or a failure to comply with s.425 of the Act.
In my view, no jurisdictional error has been made out. In the absence of jurisdictional error, it is clear the Tribunal's decision is a privative clause decision as defined by sub‑section 474(2) of the Migration Act. Under s.474, a privative clause decision is final and conclusive and is not subject to orders in the nature of certiorari, mandamus or prohibition or declaration. It follows that the application must be dismissed.
Costs
There is an application for costs on behalf of the First Respondent Minister. This is a matter for a costs order, although the Applicant has said that he does not have the funds to meet that order because he is not working and he does not have the permission to work.
The amount of costs sought is $4,000.00. As the Applicant says, he does not have that money. The fact that a party is not able to meet a costs order is not a reason for not making a costs order in favour of a successful party. However, it is a matter to be considered in assessing whether time to pay should be granted.
As to the amount itself, $4,000.00, it is well within the scale provided by the Federal Magistrates Court Rules and I note that it is a figure that apparently is inclusive of counsel's fees. The matter has certainly been economically presented by the Minister. This is only the second Court event. There is a First Court Date on 12th May 2008 and a Final Hearing today. Court Books have been prepared. Counsel has been briefed, submissions have been made, and everything that should have been done has been done, as far as I can see.
In my view, the figure of $4,000.00 is a modest amount in the circumstances and an appropriate one. However, I take into account the fact that the Applicant is not making and does not have the funds available to him, certainly not at this stage. I consider it is appropriate to allow four months to pay.
I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of Scarlet FM
Associate: V. Lee
Date: 15 July 2008
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