SZNFR v Minister for Immigration - [2009] FMCA 408

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNFR v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 408

MIGRATION – RRT decision – Pakistani applicant claiming persecution by majority community – applicant consented to Tribunal making decision without a hearing – Tribunal not satisfied as to Convention related persecution – no arguable case for judicial review – application dismissed at show‑cause hearing.

Federal Magistrates Court Rules 2001 (Cth), r.44.12(1)(a)

Migration Act 1958 (Cth)

Applicant:

SZNFR

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 291 of 2009

Judgment of:

Smith FM

Hearing date:

22 April 2009

Delivered at:

Sydney

Delivered on:

22 April 2009

REPRESENTATION

Counsel for the Applicant:

In Person

Counsel for the First Respondent:

Ms N Johnson

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The application is dismissed under Rule 44.12(1)(a) on the ground that it does not raise an arguable case for the relief claimed.
The applicant must pay the first respondent’s costs in the sum of $2,935.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 291 of 2009

SZNFR

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

The applicant arrived in Australia in March 2008, and on 8 April 2008 he lodged an application for a protection visa. Brief answers to questions in the visa application explained why he claimed to fear persecution if he returned to Pakistan.
The application claimed that the applicant came from “a minority community of Pakistan known as the Mohanjir community. Though we are Muslims by religion, we originally hail from East Punjab, which is part of India”. It suggested that the community was persecuted by the “majority local community of Pakistan”, and that the applicant and his family had been persecuted, including by the murder of his brother. It claimed that “the majority community have threatened to kill me” and another brother, and that if the applicant returned to Pakistan he feared he might be killed in the manner of his deceased brother. The application said that “after the death of my brother I received several threats, especially as my brother stood up to the persecution”.
No supporting evidence for these claims was provided to the Department of Immigration, although a letter requesting corroboration was sent to the applicant. A delegate refused the application on 15 August 2008.
The delegate's decision included reference to general country information, which identified “Urdu-speaking Mohajirs, refugees from India and their descendants who migrated to Pakistan during the 1947 partition and concentrated in Sindh". There was reference to information about a political movement of Mohajirs in Sindh called the MQM, and to some violence which had occurred there between their parties and rival parties.
The delegate's assessment of the applicant's claims referred to their lack of important details and evidence. The delegate concluded that:
the lack of detail and evidence does not demonstrate that the applicant has been persecuted in the past in Pakistan or that he will face persecutory treatment in the future on the basis of his Mohajir race (ethnicity), or for any other reason.
The delegate was satisfied that the government of Pakistan “is providing state protection against ethnic violence”. The delegate found that the applicant did not face a real chance of persecution upon return to Pakistan.
The applicant appealed to the Refugee Review Tribunal, and was sent an invitation to attend a hearing scheduled for 13 January 2009. The letter said:
The Tribunal has considered the material before it, but is unable to make a favourable decision on this information alone.
The applicant was invited to respond to the invitation, and did so. He forwarded a response indicating that he did not wish to come to a hearing, and consented to the Tribunal proceeding to make a decision without taking further action to allow him to appear before it.
The applicant also forwarded translations of three documents, being birth and death certificates of his brother, and a “first information report” to police regarding his brother's death. The complaint is by their father, who is described as being a member of the Jat caste in Sialkot district and a “Fujee of Jammu and Kashmir”. It referred to a “dispute regarding property” going on between him and a named person, and accused that person and his brothers of being responsible for “an attack on my sons in which one of them was injured and died”.
The contents of these documents provided no support for the contention that the death of the applicant’s brother was related to any Convention reason motivating the attackers, nor for any suggestion that there was a lack of state protection in Pakistan. They also did not appear to support the applicant's claim that his family were Mohajirs.
The Tribunal handed down a decision on 15 January 2009. It referred to the applicant's claims, and to his response to the invitation to attend a hearing, including the documents. The Tribunal said:
Without further information from the applicant, I am unable to accept that he belongs to the Mohajir community.
The Tribunal accepted that the applicant's brother had died, and that the father had lodged a complaint with the police, but it said that on the information provided it was unable to be satisfied of the background which was asserted in the protection visa application. It said that it was unable to be satisfied that the applicant fled Pakistan for a Convention-related reason.
The Tribunal considered whether as a Pakistani citizen from Sialkot the applicant could return to Pakistan. It concluded that current information about Pakistan “did not suggest that the applicant would not receive the protection of the Pakistani authorities or that such protection would be ineffective, if the applicant were to be harmed”. The Tribunal said “without further information from the applicant, I am unable to be satisfied that if he returns to Pakistan he will be killed, harmed or persecuted for a Convention-related reason”. It therefore affirmed the delegate's decision.
The applicant now asks the Court to set aside the Tribunal's decision and to remit the matter for further consideration. His application has been set down today to consider whether it raises an arguable case for the making of these orders. The applicant has been given the opportunity to file an amended application, written submissions, and any additional evidence, after receiving a bundle of documents and a referral for free legal advice. He has filed only an amended application.
The applicant's original application made unparticularised contentions of “gross violations of the Regulations and the Act”, and suggested that the Tribunal did not consider the criteria for the grant of a protection visa. However, in the absence of any specific argument, I am unable to find any substance to these contentions. I accept the Minister's submission that the procedures followed by the Tribunal after the receipt of the applicant's consent accorded with procedures authorised by the Migration Act.
The applicant's amended application is a discursive document which, in my opinion, makes four essential points. It firstly contends that “the Respondents have wrongly classified us from the MQM or any group of MQM, this was incorrect approach of the respondents”. It is pointed out that the MQM party had nothing to do with the applicant's claims. This is correct.
However, I cannot read the Tribunal's reasons as revealing in any respect an arguable misapprehension of the claims asserted in the protection visa application, nor as revealing confusion by thinking that the applicant claimed to be suffering persecution relating to the MQM political party. Indeed, nor do the delegate’s reasons suggest that he suffered from that misapprehension. His reasons show merely that he endeavoured to find country information concerning the treatment of Mohajirs in Pakistan.
I therefore do not consider that this contention raises an arguable case for setting aside the Tribunal's decision.
The second contention in the amended application repeats the assertions in the visa application, with some possibly additional assertions concerning the death of the applicant's brother. It also refers to the documents forwarded to the Tribunal. The gist of the contention is that the Tribunal did not address that information or made an incorrect assessment of it. However, plainly in the Tribunal's statement of reasons it did address all the information presented by the applicant, and I do not consider that it is reasonably arguable that it did not.
The third contention which can be found in the amended application is that, as well as not giving weight to the applicant's case, “instead, they have relied on the country information provided by the same country from where the applicant escaped to save his life”.
This criticism of the Tribunal for reliance upon general country information is, in my opinion, clearly misconceived. The essential basis for the Tribunal's decision was that the applicant had provided insufficient information to show a Convention basis for his claims, and had failed to establish to the satisfaction of the Tribunal that he belonged to a community, the membership of which he sought to relate to his fear of persecution. This reasoning did not rely upon any country information.
To the extent that the Tribunal's reasons did refer to some country information concerning the state of the administration of law in Pakistan, this was a subordinate part of the Tribunal's reasons, after it had drawn a conclusion that it was unable to accept that the applicant belonged to the Mohajir community. I can see no arguable basis that the Tribunal, at that point of its reasons, relied upon any information which was not properly available to it and was properly referred to.
I therefore do not consider that the third contention raises an arguable ground.
The fourth contention made by the applicant is that the Tribunal did not consider:
the fact that the applicant was an active member of the political party and was put to harassments … the applicant was arrested many times by the police, the applicant was kept in the lock-up, the applicant was released after many days. The applicant was made a victim by the hands of the authorities in his country of origin.
However, no such claims were ever made by the applicant to the Department of Immigration or the Tribunal. It cannot be jurisdictional error that they were not addressed.
In my opinion, the application does not raise an arguable case for the orders sought, and I consider it appropriate to dismiss the application today under r.44.12(1)(a).

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Michael Abood

Date: 6 May 2009