SZNMQ v Minister for Immigration
[2009] FMCA 773
•4 August 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNMQ v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 773 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – possible error in the Tribunal’s conclusion on the question of internal relocation – decision on review supported by separate finding that the applicant did not have a well-founded fear of persecution for a Convention reason. |
| Migration Act 1958, ss.474 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 Wecker v Secretary, Department of Education, Science and Training (2008) 168 FCR 272 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 VBAP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 965 |
| Applicant: | SZNMQ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 916 of 2009 |
| Judgment of: | Cameron FM |
| Hearing date: | 4 August 2009 |
| Date of Last Submission: | 4 August 2009 |
| Delivered at: | Sydney |
| Delivered on: | 4 August 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr R. Nair |
| Counsel for the First Respondent: | Mr H.P.T Bevan |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
The application be dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $5865.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 916 of 2009
| SZNMQ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of Pakistan where, he claims, he was a rating in the Pakistani navy. He claims that in 2002, while on duty, he witnessed an Al Qaeda terrorist attack. He claims that he assisted the authorities in their investigations and was afterwards subjected to threats and harassment. He claims that in 2007, in an unrelated incident, he witnessed a shooting organised by the Muttahida Qaumi Movement (“MQM”) political party. He claims that he was threatened once again after he identified the gunmen involved.
The applicant claims to fear persecution in Pakistan because he assisted the police in their investigations following the 2002 and 2007 incidents. He also claims to fear persecution in Pakistan because he unlawfully deserted from the Pakistani navy by staying in Australia.
After his arrival in Australia on 20 July 2008, the applicant lodged an application for a protection visa. This was refused by the Minister’s delegate on 28 November 2008. The applicant then applied to the Refugee Review Tribunal (“Tribunal”) for a review of that departmental decision. The applicant was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
In these judicial review proceedings the Court’s task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.
Background facts
The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 2 – 8 of the Tribunal’s decision (Court Book (“CB”) pages 97 – 103). Relevant factual allegations are:
a)he was a “leading fire control technician” in the Pakistani navy and worked on his ship’s gunfire control system. From 1990-2003 he lived in the naval colony in Karachi;
b)on 8 May 2002 a group of French engineers were attacked by a suicide bomber while en route to the Karachi naval base. The applicant, who was on duty guarding the French engineers at the time, survived the bomb attack, however, all the French engineers were killed;
c)the applicant sustained leg and other bodily injuries together with burns to parts of his body and face. He was hospitalised for three months and then spent a year recovering;
d)
as a witness, he participated in the formal investigations into this event but was harassed and threatened by people linked with
Al Qaeda. Threatening letters were also placed on his doorstep. The applicant sought assistance from his superiors in the navy but no concrete steps were taken to protect him. After a second letter was dropped at his door, he reported again to his commander but was told that it was his problem and that he could not be assisted;
e)in order to avoid the religious extremists who lived just outside the naval colony, he moved residence to the civil colony. He tried to disguise himself as a civilian even though he was still with the Pakistani navy;
f)on 12 May 2007 several hundred people gathered in Karachi to receive the deposed chief justice. The applicant was observing nearby when, suddenly, people on motorbikes came and began shooting. The applicant recognised some of the shooters as being from his civil colony and he reported this to the police. As a result, some of those involved in the shooting were arrested. He later learned that the gunmen were members of the MQM, a political party which supported the then president;
g)following the arrest a few gunmen came to his home and threatened his family. The applicant was not present at the time but received several threats afterwards from members of the MQM. He was told not to appear in any police investigation or court hearings against the shooters;
h)the police also told him many times that they were under pressure from the governor of the Sindh province, who was a member of the MQM;
i)his family, fearing reprisals, returned to their village in Punjab where it was safe. The applicant then joined a ship which was bound for Darwin and, upon arrival, decided to leave the ship in order to seek protection in Australia; and
j)the applicant does not wish to return to Karachi as he fears he will be killed by members of the MQM. He also fears that the navy will sentence him to death for unlawfully deserting his ship.
The Tribunal’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”). The Tribunal’s decision was based on the following findings and reasons:
a)the Tribunal accepted that the applicant was a leading fire control technician in the Pakistani navy but did not believe that he was on guard duty during the 2002 attack against the French engineers. In the Tribunal’s opinion, it did not seem plausible that the Pakistani navy would assign such a duty to a sailor in the applicant’s position instead of using naval intelligence officers or naval police officers;
b)the Tribunal’s finding in this respect was reinforced by the following factors:
i)given the magnitude of the bomb blast, it was not plausible that the applicant was on the bus but sustained hardly any injuries. The Tribunal noted the applicant’s claim that he was in fact injured and hospitalised, but did not accept that these claims were true. In his written statement, the applicant did not say anything about any injuries he may have sustained during the attack. In the Tribunal’s opinion, the injuries allegedly sustained by the applicant, if indeed they occurred, were so critical to his claims that it was not conceivable that he would have forgotten to include them and that fact that he did not “only goes to prove that he did not sustain such injuries”; and
ii)even if the Tribunal accepted that the applicant was a witness to the attack, this would not have assisted him in his application as he continued to live in Pakistan in the following five years without evidence of any credible attacks or persecution against him. The Tribunal noted the applicant’s claim that he changed his address to avoid the supporters of Al Qaeda, however, this was at odds with his written statement in which he claimed that he had stayed at the same address since 2003. The Tribunal therefore did not accept that he was subjected to threats following the 2002 incident;
c)the Tribunal did not consider credible the applicant’s claim that he recognised the gunmen in the 2007 shooting incident, noting that, by his own claims, there were several hundred people gathered at the point when the incident occurred and it did not seem plausible, in view of the crowd, that the applicant could have identified the people on the motorbikes;
d)given its finding that the applicant was not a witness to the 2007 shooting incident, the Tribunal did not accept that his family was subsequently targeted by MQM supporters. The Tribunal said that in any event, even if it did accept that the applicant and his family were threatened, this would not have assisted him in his application because, in its opinion, it was reasonably open to the applicant to move to Punjab. In this connection, the Tribunal noted that:
i)before he left Pakistan he moved his family to Punjab where, by his own admission, it was safer for them; and
ii)his claim that he could not move to Punjab with his family because his duty station was in Karachi was not rational given that he was willing to move to Sydney; and
e)the Tribunal accepted that the applicant’s desertion from the Pakistani navy could carry with it severe penalties, however, this was not an issue on which the applicant could rely for protection as the law relating to deserters in the Pakistani navy was a law of general application and was not targeted at the applicant in any discriminatory manner.
Proceedings in this Court
The grounds of the amended application were pleaded as follows:
(1)The second respondent (“the Tribunal”) did not take into account a relevant consideration.
In the alternative, the Tribunal’s purported decision was irrational and illogical and not based on findings or inferences of fact supported by logical grounds. The purported decision was so unreasonable that no reasonable decision-maker could have come to it on the basis expressed in the Tribunal’s findings and reasons.
These allegations were particularised in seven paragraphs, the most relevant of which was the following:
(vi)The Court can and should infer that the Tribunal failed to take into account the consideration that the applicant, as a serving member of the Pakistan Navy could not with impunity arbitrarily relocate within Pakistan, from Karachi to Punjab – where he would continue to remain within the reach of the Pakistan Navy and Pakistan authorities – and where accordingly, he would not enjoy the safety of the environment. (emphasis in original)
In his written submissions, the applicant states as follows:
In its Findings and Reasons the Tribunal (CB 107, paragraph 79) said:
As the Tribunal noted to the applicant in the course of the hearing, it does not seem rational that the was unwilling to move to the city of Punjab because his duty station was in Karachi but that notwithstanding, he is willing to move to Sydney where he certainly does not have a duty station. In the Tribunal’s opinion if the applicant found it prudent enough to move his family to the city of Punjab and that he himself was only unwilling to move there because of his duty commitment in Karachi, then it is reasonable to suggest that the applicant could have moved to Punjab to enjoy the safety of the environment there just as his family. On the evidence the Tribunal rejects the applicant’s claims accordingly.
It is clear from the above that the reason or part of the reason the Tribunal affirmed the first respondent’s delegate’s decision was the failure by the applicant to himself move to Punjab (from Karachi) when he moved his family to Punjab for their safety following threats made in Karachi against himself and his family (CB 107, paragraph 76 to 79).
…
The Court can and should infer that the Tribunal failed to take into account the consideration that the applicant, as a serving member of the Pakistan Navy could not with impunity arbitrarily relocate within Pakistan, from Karachi to Punjab – where he would continue to remain within the reach of the Pakistan Navy and Pakistan authorities – and where accordingly, he would not enjoy the safety of the environment. (emphasis in original)
Lucid and helpful oral submissions were also made today by counsel appearing for the applicant.
Arguably, the Tribunal did err in its consideration of the applicant’s ability to relocate within Pakistan. However, such error was not by reason that it failed to take account of a relevant consideration, in the sense of a failure to consider the question of relocation. Nor was it because the decision was illogical as illogicality, in the sense advanced in this case, namely, that different conclusions on the facts would probably have been more reasonable, does not amount to jurisdictional error: Wecker v Secretary, Department of Education, Science and Training (2008) 168 FCR 272. Nor is the error based on questions of manifest unreasonableness in the sense considered in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 because that case is concerned with the making of a discretionary decision, not with a Tribunal’s making of an intermediate factual finding on which its ultimate decision may rest.
The Tribunal’s decision suggests error because the Tribunal appears to have failed to turn its mind to the reasonable practicability of the applicant relocating to an inland province of Pakistan while a serving member of that country’s navy. However, that was not the issue raised by the applicant.
Nevertheless, any error on the Tribunal’s part in relation to the question of relocation is of no significance because the Tribunal’s decision was independently and separately grounded on its rejection of the applicant’s essential claims to have assisted the authorities in connection with the murders of the French engineers in 2002 and the 2007 disturbance at the event involving Chief Justice Chaudhry: VBAP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 965. Given that the Tribunal rejected the applicant’s allegations concerning the matters said to be the basis of his claimed fear of persecution, its views on whether he might relocate to Punjab do not affect the correctness of its decision.
The applicant submitted that the Tribunal’s findings on his essential claims were affected by its conclusion on the relocation question, however, I do not agree. In my view, the Tribunal’s findings on the essential claims were quite independent of its findings on the relocation issue. The claims concerning the events in 2002 were rejected for the reasons summarised earlier in these reasons, those reasons having nothing to do with whether the applicant could or would relocate. As to the event in 2007, the Tribunal said:
The Tribunal does not regard it as plausible that the applicant was a witness as he claims
based on the conclusions it drew in relation to the facts alleged by the applicant in connection with that event.
Consequently, I find that whatever shortcomings might be said to affect the Tribunal’s consideration of the potential for the applicant to move to the Punjab, its ultimate conclusion rests securely on its rejection of his claims to have a well-founded fear of persecution for a Convention reason.
Conclusion
As jurisdictional error on the part of the Tribunal has not been demonstrated, the application will be dismissed.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 13 August 2009
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