SZMLL v Minister for Immigration - [2008] FMCA 1453

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMLL v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 1453

MIGRATION – Visa – Protection (Class XA) visa – Refugee Review Tribunal – application for review of RRT decision affirming a decision of a delegate of the Minister refusing to grant the applicant a visa – applicant is a citizen of Pakistan claiming fear of persecution from an Islamic fundamentalist group – whether Tribunal breached Migration Act 1958 (Cth) s 424A – natural justice – procedural fairness – whether Tribunal incorrectly applied the definition of a refugee – no reviewable error.

Migration Act 1958 (Cth), ss.91R, 91S, 424, 424A, 424AA, 474(2)

Applicant:

SZMLL

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1646 of 2008

Judgment of:

Scarlett FM

Hearing date:

8 October 2008

Date of Last Submission:

8 October 2008

Delivered at:

Sydney

Delivered on:

8 October 2008

REPRESENTATION

The Applicant:

Appeared in person

Solicitors for the Applicant:

Not legally represented

Appearance for the Respondents:

Ms Kelso

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application is dismissed.
The applicant is to pay the first respondent’s costs fixed in the sum of $3,100.00.
I will allow three (3) months to pay.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1646 of 2008

SZMLL

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

Application

The applicant is a citizen of Pakistan. He asks the Court to review a decision of the Refugee Review Tribunal that was signed on 6^th May and handed down on 27^th May 2008. The Tribunal affirmed the decision of a delegate of the Minister not to grant the applicant a protection (Class XA) visa. In his application that was filed on

26^th June 2008
the applicant asks the Court to make three orders:
a)A writ of certiorari quashing the Tribunal decision.
b)An order in the nature of prohibition directed to the Minister who is the first respondent to the application prohibiting the Minister from giving effect to the Tribunal's decision.
c)An order in the nature of mandamus directed to the Tribunal requiring it to hear and determine according to law the application for review of the decision of the delegate of the first respondent.
I have explained to the applicant that in order to make the orders that he seeks the Court must be satisfied that the Tribunal decision is affected by jurisdictional error.
The background to this matter is that the applicant arrived in Australia on 2^nd November 2007. He applied for a protection (Class XA) visa on 14^th December 2007. The basis of his application is that earlier in 2007 the applicant had been visiting friends in a part of Pakistan and he was asked to go and meet a man called Mula who was the leader of an Islamic fundamentalist group who was recruiting young men by force to be his supporters. The applicant did not wish to be a supporter of this man. He is not a fundamentalist and he considers the group to be very dangerous. He said that he ran away to Rawalpindi. He claimed in his application for a visa that he does not want to join this man's organisation and the government cannot protect him from this man.
A delegate of the Minister refused to grant the visa on 30^th January 2008. The delegate set out in her reasons that:
The applicant's claims are brief, vague, not credible and unsubstantiated.[1]
[1] See Court book, page 40.
The delegate also considered whether the applicant could relocate within Pakistan. The delegate said:
The applicant is young and I consider that there is no impediment to relocate elsewhere in Pakistan if he so chooses. The applicant is a Muslim and Muslims comprise the major religious group in Pakistan with 97 per cent of the country's population following Islam. Pakistani law provides for freedom of movement throughout the country though this was curtailed to some extent for some political party and religious leaders. However the applicant does not fit these profiles.[2]

[2] See Court book, page 40.

The applicant applied to the Refugee Review Tribunal on 20^th February 2008 for a review of the delegate's decision to refuse him a visa.

He did not provide any additional documentation to the Tribunal at the time of his application for review. The Tribunal wrote to the applicant on 26^th March 2008 inviting him to attend a hearing of the Tribunal to take place on 30^th April. The applicant attended that hearing and gave evidence with the assistance of an interpreter in the Urdu language.
The applicant provided to the Tribunal a copy of his passport. He also provided some other material downloaded from the internet concerning violence in Rawalpindi in which two suicide bombers struck killing up to 35 people. The Tribunal asked the applicant a number of questions about his application and questioned him as to whether it would be possible for him to live elsewhere in Pakistan. The Tribunal also offered the opportunity of additional time to comment or to respond to information that had been put to him during the hearing. The Tribunal in its decision record said:
The Tribunal put to the applicant that as it had mentioned at the beginning of the hearing he was entitled to seek additional time to comment on or to respond to the information that had been put to him during the hearing that may be a reason for affirming the delegate's decision to refuse him a visa. Asked if he needed more time to comment on or to respond to the information the applicant replied in the negative and stated that he had been telling the truth.[3]
[3] See Court book, page 75.
The Tribunal signed its decision on 6^th May 2008 and handed that decision down on 27^th May affirming the decision not to grant the applicant a protection (Class XA) visa. In its findings and reasons the Tribunal accepted that the applicant was a citizen of Pakistan based on the production of his passport issued by that country. Accordingly the applicant was assessed against Pakistan as his country of nationality.
The Tribunal noted the applicant's claims of a fear that his life was in danger and that the Mula or his supporters may try to kill him but found that the applicant had provided no evidence to support those claims. The Tribunal referred to the incident which was covered by the news article obtained from the internet which I have previously referred, where two suicide bombers had killed up to 35 people in Rawalpindi. The Tribunal noted that the newspaper article provided no indication that the suicide bombings were the work of the Mula or that the attacks were directed against him or his family or that there was a convention related reason behind them. The Tribunal also found it significant that the applicant did not remember when the incident occurred.
The Tribunal considered the reasonableness of the applicant being able to relocate within Pakistan if for any reason he was concerned about his safety in Rawalpindi. The applicant was asked whether he had reported the incident with the Mula to the police and he told the Tribunal that he had not done so because they had not been able to protect Benazir Bhutto. The Tribunal noted:
He asked rhetorically at the hearing that if they could not protect her then how could he be confident that they could protect him because they could not even find her assassins. However the Tribunal does not accept this claim. The Tribunal has already found that the applicant does not have a profile, political or otherwise, of any sort let alone that of ex Prime Minister Benazir Bhutto who knowingly returned to Pakistan at a time of great political tension.[4]
[4] See Court book, page 77.
The Tribunal did not accept that the applicant had a well founded fear of serious harm amounting to persecution and did not accept that there was a real chance that the Mula or his followers would be interested in the applicant or would be able to track him down in order to harm him because he refused to participate in their organisation or any other convention reason.
The Tribunal was also satisfied that if the applicant did not wish to return to his parents' home in Rawalpindi then it would be reasonable for him to live elsewhere in Rawalpindi or indeed elsewhere in Pakistan in safety without there being a real chance that he would be subject to serious harm amounting to persecution. The Tribunal was satisfied that there was not a real chance that the applicant would be subject to serious harm amounting to persecution for a convention related reason if he returned to Pakistan and was not satisfied that the applicant was a person to whom Australia has protection obligations under the Refugees Convention.
The applicant commenced proceedings in this Court by means of an application and an affidavit filed on 26^th June 2008. The grounds of his application for review are these:
a)A breach of s.424 of the Migration Act because the Tribunal used some information from the applicant's original application for a tourist visa and did not disclose that information to the applicant.
b)
That the Tribunal failed to afford natural justice and follow procedural fairness because the Tribunal asked the applicant incorrect questions which prejudiced the Tribunal and made incorrect assertions that persons cannot be traced in Pakistan only because it had a huge population. The Tribunal also made an approach that in order to be targeted by the terrorists the applicant needs to be a high profile person like Benazir Bhutto.

The applicant tried to make the Tribunal understand that since a high profile person like Benazir Bhutto could not be provided protection despite a heavy police guard, he argued that the government was not able to provide protection to anyone in Pakistan but the Tribunal did not make any reasonable effort to understand that claim.
c)The applicant claimed that the Tribunal incorrectly applied the definition of a refugee as defined in the Refugees Convention and the Refugees Protocol because the applicant's denial of joining the Islamist Army also constituted political opinion within the meaning of the convention.
The applicant has not filed any written outline of submissions but addressed the Court and made oral submissions. He took issue with the Tribunal's finding that he could reasonably relocate within Pakistan and said that there was not safety anywhere inside Pakistan. The bomb blasts could occur anywhere.
He told the Court that he had rung home and spoken to his father.

He had gone into hiding and his father had said that he had obtained a visa and that he should leave the country. The applicant accepted that the Tribunal allowed him time to give his account. He said the Tribunal asked him about proof of his claims and he did not have proof that he had brought with him.
For the Minister Ms Kelso has submitted that in respect of ground 1 there was no breach of s.424A of the Migration Act in respect of the applicant's claim that the Tribunal relied on information from his tourist visa because there was nothing to suggest that it relied on that information to undermine the applicant's credibility or the voracity of his claims. The ground did not identify any information that fell within the obligations under s.424 (1) of the Migration Act.
In the alternative Ms Kelso submitted that any consideration of or reliance on by the Tribunal of information relating to the temporary business visa was confined to the evidence given by the applicant orally at the hearing. She submitted that that information fell within the exception in subsection 424A (3) (b) of the Act.
As to the applicant's second ground Ms Kelso submitted that there was nothing in the Tribunal's summary of what occurred at the hearing to suggest that the Tribunal did not adequately explore the applicant's claims with him and specifically asked him if there were any other claims or other matters he wished to put before the Tribunal and he replied in the negative.
As to the assertion that the Tribunal made an incorrect assertion that persons cannot be traced in Pakistan only because it has a huge population and the assertion that the Tribunal made an incorrect approach that in order to be targeted by the terrorists the applicant needs to have a high profile like Benazir Bhutto and submitted that those assertions did not disclose any jurisdictional error in the Tribunal's factual finding. She also submitted there was no substance to the applicant's complaint that the Tribunal did not make any reasonable effort to understand his claim.
As to the third ground, the claim of incorrectly applying the definition of a refugee Ms Kelso submitted for the Minister that in the Tribunal's reasons it correctly set out at pages 69-71 of the Court book the relevant law in relation to the definition of a refugee and on a fair reading of the decision it was clear that the Tribunal applied that law correctly to the facts of the case.
Ms Kelso also put to the Court that the Tribunal had complied with the procedures set out in s.424AA of the Act when it offered the applicant additional time to comment on or reply to information put to him by the Tribunal member at the hearing that may have been adverse to his claim but that he declined that offer.
The Tribunal was not satisfied that the applicant had made out his case. It was not satisfied that outside the immediate area where the Mula and his supporters operated that the applicant had such a high profile that the supporters would seek him out and attempt to harm him and was not satisfied that his claims were credible. The Tribunal was also satisfied that if the applicant did have some fear that he could be harmed living in his parents' home in Rawalpindi it would be reasonable for him to relocate either elsewhere in Rawalpindi or indeed elsewhere in Pakistan.
The applicant's first ground claims a breach of s.424A of the Migration Act relating to information from the applicant's original application for a tourist visa. In my view that information about the application for a tourist visa does not form information that would be caught by subsection 424A (1). There is nothing to suggest that the Tribunal relied on that information as a reason or a part of the reason for affirming the decision under review by undermining the applicant's credibility or the voracity of his claims. In any event I am satisfied that the Tribunal which based its decision largely on the applicant's evidence or material that the applicant had put to the Tribunal for the hearing or the purpose of the hearing, that it raised with the applicant by questions during the hearing matters that would be a reason or a part of the reason for affirming the Tribunal decision and followed the procedure set out in s.424AA of the Act. Consequently, s.424A (2) (a) of the Act applies and there is no breach of s.424A of the Migration Act. The applicant's first ground fails.
The second ground relates to a claim that the Tribunal asked the applicant incorrect questions which prejudiced the Tribunal and made incorrect assertions. Those matters do not constitute jurisdictional error and ground two largely involves the applicant seeking to civil with the Tribunal's factual findings. The ground also claims that the Tribunal did not make any reasonable effort to understand the applicant's claim that he was not safe anywhere in Pakistan, but in my view a fair reading of the Tribunal's decision shows that it did consider those matters.
As to the claim that the Tribunal incorrectly applied the definition of a refugee it is clear as has been submitted that the Tribunal set out in the preamble of the decision the definition of a refugee and the four key elements to the convention definition as set out in ss.91R and 91S of the Migration Act. I am satisfied that the Tribunal correctly applied the facts as it found them to the correct definition of refugee as applies under the Migration Act.
The applicant is not legally represented. An independent reading of the Tribunal decision does not disclose any other jurisdictional error that I can discern. I am of a view that no jurisdictional error has been made out. The Tribunal decision is a privative clause decision as defined by subsection 474(2) of the Migration Act and consequently it is not subject to certiorari, prohibition or mandamus as the applicant claims. It follows that the application will be dismissed with costs.
There is an application for costs on behalf of the first respondent Minister in the sum of $3,100.00. This is an appropriate matter for costs and the amount sought is appropriate in the circumstances.

The applicant does not have the funds to meet that order and unless I make an order allowing time to pay he would be required to pay those costs within 28 days. I am of a view that I should allow three months to pay.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: S. Polley

Date: 16 October 2008