SZMYP v Minister for Immigration

[2009] FMCA 215

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMYP v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 215

MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether the Refugee Review Tribunal complied with s.424A of the Migration Act 1958 (Cth) – whether the applicant was on notice of the issue of document fraud.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5(1), 36(2), 65(1), 91R, 91S, 424A, 424A(3)(b), 474, pt.8 div.2

NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFA 10
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte S20/2002 (2003) 198 ALR 59
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 231 ALR 592
SZBYR v Minister for Immigration and Citizenship [2007] 235 ALR 609
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12
Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155

Applicant: SZMYP

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG 3067 of 2008

Judgment of: Emmett FM

Hearing date: 12 March 2009

Date of last submission: 12 March 2009

Delivered at: Sydney

Delivered on: 18 March 2009

REPRESENTATION

Applicant appeared on his own behalf

Counsel for the Respondent: Ms S. Sirtes

Solicitors for the Respondent: Ms M. Palmer, Sparke Helmore

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3067 of 2008

SZMYP

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated and handed down on 27 October 2008.

2. The applicant claims to be a citizen of Pakistan and of Muslim faith (“the Applicant”).

3. The Applicant arrived in Australia on 27 April 2007 having departed legally from Pakistan on a passport issued in his own name and a temporary business visa issued on 18 April 2007.

4. On 3 October 2007, the Applicant lodged an application for a protection (Class XA) visa with the then Department of Immigration and Multicultural Affairs (“the Department”) under the Act.

5. On 12 February 2008, a delegate of the First Respondent (“the Delegate”) refused the Applicant’s application for a protection visa. 

6. On 25 August 2008, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal. 

7. On 27 October 2008, the Tribunal affirmed the decision of the Delegate not to grant a protection visa. 

8. On 24 November 2008, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision. 

Legislative framework

1. Section 65(1) of the Act authorises the decision maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision maker is not so satisfied then the visa application is to be refused.

2. Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees.

3. Australia has protection obligations to a refugee on Australian territory.

4. Article 1A(2) of the Convention relevantly defines a refugee as a person who:

   “owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”

5. Section 91R and s.91S of the Act refer to persecution and membership of a particular social group when considering Article 1A(2) of the Convention.

The Applicant’s application for a protection visa

1. In his protection visa application the Applicant claimed that due to political persecution he is unable to return to Pakistan. The Applicant claimed that he was a member of the Pakistan Muslim League (“the PML”) and because of his membership the present military backed ruling party had harassed him and attempted to kill him in Pakistan. The Applicant claimed that in 1999 he was harassed at a party meeting and in 2001 a “group of miscreant terrorists” fired guns into the air outside his home and, later that year, he was beaten and seriously injured and taken to hospital. The Applicant claimed that in 2002 he was shot at and this incident was reported in the newspaper. The Applicant further claimed that in 2002 he was again beaten at a meeting and the police failed to take any action against his assailants. The Applicant claimed that in 2005 his home was ransacked by members of the ruling party and a warrant was issued for his arrest. The Applicant claimed that because a warrant had been issued for his arrest he will be arrested if he returns to Pakistan and then handed over to those people who have threatened to kill him due to his participation in the PML.

The Delegate’s decision

1. On 12 February 2008, a delegate of the First Respondent (“the Delegate”) refused the Applicant’s application for a protection visa on the basis that the Applicant is not a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (“the Convention”).

The Tribunal’s review and decision

1. On 25 August 2008, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal.

2. On 10 September 2008, the Tribunal wrote to the Applicant informing him that the Tribunal had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the Applicant to attend a hearing on 16 October 2008 to give oral evidence and present arguments. The Applicant attended that hearing and gave oral evidence where he expanded upon his written claims.

3. The Tribunal noted in its decision record that it discussed with the Applicant:

   a)Why the Applicant had obtained a passport in 2006 and whether he had travelled outside his country prior to coming to Australia;

   b)Why the Applicant had come to Australia;

   c)The address of the Applicant’s family in Pakistan and, when the Applicant replied that he did not know the address, the Tribunal asked why that was so;

   d)The details of the incidents that had taken place in Pakistan resulting in the Applicant’s claimed fear of persecution; and

   e)How the Applicant managed to “live in his ancestral home, run two businesses, get a passport and visa in his name and leave his country if he was persecuted as he claims to have been.”

4. The Tribunal noted that it had before it the Department’s file, the Delegate’s decision record and other materials available to it from a range of sources. 

5. The Tribunal found the Applicant was not a witness of truth.

6. The decision of the Tribunal is accurately summarised by counsel for the First Respondent in her written submissions as follows:

   “The Tribunal:

   (a)Accepted that the applicant’s identity was genuine and that he is a citizen of Pakistan (CB 102 at [44]).

   (b)Found it was implicit in the applicant’s claims that he was unable to obtain protection from the harm he claimed to fear in Pakistan (CB 101 at [40]).

   (c)Accepted that there is sometimes harassment and violence in Pakistan against/amongst people by reason of their political opinions and activities and that there is not always protection available to those persons (CB 101 at [41]).

   (d)     Did not accept that:

   i.   the applicant had been harmed, harassed or threatened by police, authorities or the present Pakistani government in Pakistan at any time because of his political/imputed political opinion;

   ii.  the applicant’s family members had been harassed for the reasons claimed;

   iii.left Pakistan and/or could not return there for the reasons claimed;

   iv.was an active member or officer holder in the Pakistan Muslim League (“PML”);

   v.  was of interest to the authorities by reason of his political opinion or activities.

   by reason of its assessment that the applicant was not a witness of truth and his evidence was unreliable (CB 102 at [45]).

   (e)Found that the applicant provided inconsistent, and at times scant evidence as to the harm he claimed to have befallen his family in Pakistan by reason of his political activities/opinions.  The applicant gave differing versions as to the reason he left Pakistan and the Tribunal concluded that his earlier account in which he stated he had come to Australia to assist with his father’s surgical instruments business was not consistent with a person who feared harm in Pakistan (CB 102 at [46]).

   (f)Noted that the applicant had difficultly remembering the dates of the events in which he claimed to have been involved (CB 102 at [47]).  Recorded that despite having told the Tribunal that he had needed to move from Sialkot to Lahore in order to avoid harm several months before departing Pakistan, the applicant could not tell the Tribunal where in Lahore he had been living (CB 102 at [48]).

   (g)Found it implausible that if the applicant had moved from Sialkot as he claimed, he would not have returned a month later to attend a political rally as claimed (CB 103 at [48]).

   (h)Found the applicant’s claims to have had difficulties with the authorities to be inconsistent with his having obtained a passport and visa for Australia without difficulties, that he had resided in the ancestral home and been involved in business in Pakistan (CB 103 at [49]).”

The proceeding before this Court

1. The Applicant was unrepresented before this Court, although had the assistance of a Punjabi interpreter.

2. On 3 February 2009, the Applicant attended a directions hearing before this Court and was given leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit. On that occasion it was explained to the Applicant that this Court had no power to interfere with the decision of the Tribunal unless the Court is satisfied that the Tribunal’s decision is affected by a legal mistake that goes to the jurisdiction of the Tribunal. On 5 March 2009, the Applicant filed an amended application.

3. At the directions hearing, the Court referred the Applicant to the NSW RRT Legal Advice Scheme for free legal advice. The Applicant has participated in the NSW RRT Legal Advice Scheme and received advice from Mr Gregory Sarginson of counsel. The Court also provided to the Applicant a contact list of providers of legal assistance and interpreting services.

4. At the directions hearing, the Court also provided to the Applicant a copy of the applicable costs schedule of the Court and explained to the Applicant the consequences that would follow for him if a costs order was made against him. Namely, that whilst ever any costs order remains unpaid it becomes a debt to the Commonwealth of Australia. As such, the Applicant’s ability to obtain any other type of visa or re-enter Australia may be significantly affected. The Court then confirmed with the Applicant that he wished to continue with his application.

5. The Applicant confirmed that he relied on the grounds contained in an amended application filed on 5 March 2009 and only those grounds. The grounds of the amended application are expressed to be as follows:

   “1.The Tribunal breached Sec 424A of the Migration Act 1958 by not giving written notice of the manner in which it was going to take into account the independent country information regarding documents fraud in Pakistan.

   2.The Tribunal raised the above issue orally with me at the hearing and breached the criteria set in the high Court case SZBYR v Minister for Immigration (2007)”

6. Each of the grounds was interpreted for the assistance of the Applicant and the Applicant was invited to make submissions in support of each of the grounds and in support of his application generally. The Applicant confirmed that he had filed no evidence or submissions in support of his application.

Grounds 1 and 2

1. Grounds 1 and 2 are not supported by particulars and the Applicant made no meaningful submissions in support. The Court understands that, at the heart of the Applicant’s complaints in grounds 1 and 2, is his disagreement with the Tribunal’s finding that two documents provided by the Applicant in support of his protection visa application were not reliable because country information suggested that “fraud and corruption were relatively common in Pakistan and it was possible to get fraudulent documents in Pakistan that are not reliable.”

2. The Tribunal notes in its decision record that it put this country information to the Applicant and noted the Applicant’s response.

3. At the directions hearing, the Applicant was directed to file and serve his evidence, including any transcript of the Tribunal hearing by 24 February 2009. The Applicant was also directed to file and serve a notice if he wished to rely on the hearing tapes by 24 February 2009. Nothing was filed on behalf of the Applicant in accordance with these directions or otherwise. In the circumstances I accept as accurate the Tribunal’s decision record of what transpired at the hearing and its summary of the claims and evidence before it.

4. The documents to which the Applicant’s complaints refer are identified in the Tribunal’s decision record as follows:

   “Attached to the application is a copy of a document described as an information made at Kotwali Police Station in about an incident occurring on 15 February 2007 in which the applicant was involved opposing the government; a copy of a letter certifying that the applicant is an active member of the Pakistan Muslim League who worked hard for the party during 1998, that he was harassed and pursued and had to leave the country, that he is being opposed by the present government, that his and his families’ lives are threatened, that he wishes him a happy life in London; a copy of a Pakistan Muslim League card.”

5. Ultimately, the Tribunal found that, given its findings that the Applicant was not a witness of truth and given the country information about document fraud in Pakistan, the Tribunal found that the documents produced in support of his claims by the Applicant were not reliable evidence of the facts alleged in them. The Tribunal noted that it discussed its concerns about the provenance of the documents with the Applicant at the hearing, including the country information before it which suggested that document fraud was relatively common in Pakistan. The country information to which the Tribunal has regard and the weight it gives that material is a matter entirely for the Tribunal (NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFA 10 at [11]).

6. Further, a fair reading of the Tribunal’s decision record makes clear that the Tribunal comprehensively rejected the entirety of the Applicant’s claims of past harm and did not accept that the Applicant left Pakistan because he feared harm there. It did not accept that the Applicant or the Applicant’s family were threatened in Pakistan at any time including after the Applicant left Pakistan. The Tribunal did not accept that the Applicant was or is an active member or office holder of the PML or that he is of any interest to the authorities, the police or the present government because of any political opinion or activities. The Tribunal noted that the Applicant provided “little detail” of what he alleged happened to him and his family in Pakistan because of his alleged political opinion and alleged activities. The Tribunal found the evidence that the Applicant did give to be inconsistent and not credible.

7. The Tribunal made comprehensive adverse credibility findings in respect of the Applicant’s evidence. In the circumstances, the Tribunal was entitled to reject the documentary evidence provided by the Applicant in support (Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte S20/2002 (2003) 198 ALR 59 at [49]).

8. However, in any event, the Tribunal did in fact consider each of the documents provided by the Applicant and discussed with the Applicant at the hearing the independent country information before it that suggested that the documents may not be genuine and noted the Applicant’s response.

9. Ultimately, the Tribunal placed no weight on the documents. That finding is a matter for the Tribunal. It is for the Tribunal to consider and evaluate the evidence before it and make findings in respect of that evidence. The findings and conclusions made by the Tribunal in the case before this Court were open to it on the evidence and material before it and for the reasons it gave, including its adverse credibility findings. Credibility findings are a matter par excellence for the Tribunal (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J).

10. It is possible that grounds 1 and 2 are also intending to assert that the information upon which the Tribunal relied, being the independent country information relating to document fraud in Pakistan, is information that enlivened the obligation of s.424A of the Act because the document fraud was information before the Tribunal which formed part of its reasons for affirming the decision under review. However, the documents were provided to the Tribunal by the Applicant for the purposes of his review. As such, the information in the documents is excluded from the obligations of s.424A of the Act, by reason of s.424A(3)(b) of the Act.

11. If the Applicant was intending to assert in grounds 1 and 2 that document fraud was an issue in respect of which he was entitled to be put on notice, the documents were also placed before the Delegate in making his decision. The Applicant confirmed to this Court that the documents referred to by the Delegate in his decision were the same two documents as were before the Tribunal. In respect of the documents the Delegate stated as follows:

    “I am prepared to accept that the applicant might have been a member or supporter of the PML-N, given the PML membership card provided in support of his application (Part 5:1:folio 6). However, according to the supporting letter (undated) (Part 5:1:folio6), the applicant had only worked for the PML during the 1998 election campaign. No mention is made in the letter of any other involvement or activities the applicant has had with the PML since then. Furthermore, the letter contains information which seems incongruous with the applicant’s personal circumstances. In view of this and given the prevalence of fraudulent documents in Pakistan (emphasis added), I do not accept that the applicant had been active in support of the PML or held any position or established a profile within the PML before his departure. Although country information indicates that violent incidents involving both supporters of the current ruling party and the PML (or the PPP) have continued to occur during elections in Pakistan in recent years, I do not accept that the applicant was targeted by the Pakistani ruling party members and supporters because of his political profile within the PML…”

1. In the circumstances, this was an issue about which plainly the Applicant should have been aware. It was an issue before the Delegate and therefore was an issue of which the Applicant must be taken to have been aware may be an issue before the Tribunal (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 231 ALR 592 (“SZBEL”)at [47]).

2. To the extent that grounds 1 and 2 may be intending to assert that the Tribunal’s evaluation and adverse findings about the Applicant arising from the discussion of independent country information was information that enlivened the obligations of s.424A, then those discussions are no more than the thought processes of the Tribunal. The Tribunal was not obliged to provide a running commentary to the Applicant about what it thinks about the evidence (SZBEL at [48]; SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 606 at [18])). As stated above in these reasons, the Tribunal’s findings were open to it on the evidence and material before it and for the reasons it gave.

3. Otherwise, a fair reading of the Tribunal’s decision makes clear that the Tribunal accurately summarised the Applicant’s written claims; discussed at a hearing the Applicant’s evidence; put to the Applicant concerns it had arising out of that evidence and noted the Applicant’s response. The Tribunal also reminded itself that the benefit of the doubt should be given to an Applicant if he appears credible. The Tribunal made findings that were open to it on the evidence and material before it and for the reasons it gave. The Tribunal had regard to the correct legal principles in considering whether or not the Applicant had a well founded fear of persecution for a Convention related reason. It applied the correct legal principles to the facts as it found them to be in affirming the decision under review.

4. Accordingly, the grounds of the amending application are not made out.

Initiating application

1. To the extent that the Applicant’s amended application was complaining that the Tribunal did not investigate the Applicant’s claims, there is no such positive duty to investigate claims imposed upon the Tribunal (Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43]; Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [20])).

2. It is not any part of the duty of a decision maker to make the applicant’s case for him. A duty to investigate may only arise where it is obvious that there is material available that is centrally relevant to the decision to be made, such that it would be unreasonable for the decision maker to proceed to make its decision without attempting to obtain that information (Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 170 (“Prasad”)). A fair reading of the Tribunal’s decision record does not suggest that there were circumstances in this case that made investigation by the Tribunal obligatory in terms of Prasad.

3. In any event, the Applicant specifically disavowed reliance on the grounds of the initiating application.

Conclusion

1. A fair reading of the Tribunal’s decision makes it clear that the Tribunal understood the claims being made by the Applicant; explored those claims with the Applicant; had regard to all material provided in support. The Tribunal put to the Applicant matters of concern it had about his evidence and noted the Applicant’s responses. The Tribunal also put to the Applicant independent country information before it and noted the Applicant’s comments. The Tribunal then made findings based on the evidence and material before it. Those findings of fact were open to the Tribunal on the evidence and material before it and for which it provided reasons. A fair reading of the Tribunal’s decision makes clear that the Tribunal reached conclusions based on the findings made by it and applied the correct law to the facts as it found them to be in reaching those conclusions.

2. In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.

3. The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.

4. The proceeding before this Court is dismissed with costs.

I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Emmett FM

Associate:  S. Kwong

Date:  17 March 2009