SZNSD v Minister for Immigration - [2009] FMCA 1118

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNSD v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 1118

MIGRATION – Review of RRT decision – applicant a citizen of Pakistan – where grounds for review not clearly particularised or not clearly referable to Tribunal’s decision and essentially seeking merits review.

Migration Act 1958, s.424A

NADH of 2001 v Minister for Immigration [2004] FCAFC 328
NALQ v Minister for Immigration [2004] FCAFC 121
SZATG v Minister for Immigration [2004] FCA 1595
SBBA v Minister for Immigration [2003] FCAFC 90
NAAH v Minister for Immigration [2002] FCAFC 354

Applicant:

SZNSD

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1527 of 2009

Judgment of:

Raphael FM

Hearing date:

26 October 2009

Date of Last Submission:

26 October 2009

Delivered at:

Sydney

Delivered on:

26 October 2009

REPRESENTATION

For the Applicant:

In person

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

Application dismissed.
Applicant to pay the First Respondent’s costs assessed in the sum of $4,200.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1527 of 2009

SZNSD

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicant is a citizen of Pakistan. He arrived in Australian on 27 February 2008 and applied to the Department of Immigration and Citizenship for a protection (Class XA) visa on 10 April 2008. On 7 July 2008 a delegate of the Minister refused to grant a protection visa and the applicant sought review of that decision from the Refugee Review Tribunal on 15 August 2008. The Refugee Review Tribunal held a hearing which the applicant attended. It also sent to him two letters pursuant to s.424A of the Migration Act 1958 (the “Act”), the first on 7 November 2008 and the second on 11 February 2009. On 29 May 2009 the Tribunal determined to uphold the decision not to grant the protection visa and handed that decision down on 1 June.
The applicant’s grounds for claiming to be a person to whom Australia owed protection obligations arose out of his history of being an activist in the PML (Q) Party and in particular to being an outspoken anti-terrorist campaigner who claimed that during the recent elections in Pakistan he was injured and narrowly escaped serious injury or death following his giving speeches against terrorism and Al Qaeda. The applicant’s father was a former member of the State Parliament, also in the interests of the PML (Q) Party, which is the party which gave former President Musharraf allegiance.
At the hearing before the Tribunal the applicant provided details of his early interest in political activities and his joining of the youth wing of the PML (Q). He told of his father being an MP for the Provincial Assembly between 2002 and 2008. He claimed that his father did not stand again for that position because of what had occurred to the applicant in 2007. When the Tribunal questioned the applicant about his knowledge of the PML (Q) and his activities within it the Tribunal came to the view that he was fairly vague about the nature of these activities. The applicant told the Tribunal that on 20 August 2007 members of an extremist group attacked and tried to kill him after he had delivered a speech against terrorism at a public meeting at the headquarters of the PML (Q).
The Tribunal noted that even though the applicant had held a passport and a visa for Australia since February 2007 he did not make any attempt to travel to Australia until February 2008. The applicant claimed that his medical condition was very poor and he could not come before February 2008. He claimed to have had head injuries, injuries to his arm and was unable to walk properly. He later produced to the Tribunal a medical report made after he had left Pakistan which only indicated that he had a broken left forearm. The Tribunal noted there was no indication in the report as to the date or cause of the injury and it did not consider that the medical report supported the applicant’s claims. The Tribunal accepted that the applicant was the person he said he was and that his father had been a provincial MP and that he was a member of the PML (Q). Where the Tribunal parted company from the applicant was in relation to the alleged violence that had been perpetrated against him as a result of his activities. The applicant produced what he considered to be corroborating evidence in the form of documentation and press reports about the incident. The Tribunal sent these documents to Post in Islamabad and asked the Post to investigate the bona fides of the newspaper or periodical in which the report was meant to have appeared.
The Post reported that it had made extensive inquiries which are detailed at [49] of [CB 169] and these inquiries revealed no knowledge of the newspaper. The Tribunal put this information to the applicant in the first of the two s.424A letters. In response the applicant provided a barrage of further information, all of which is reproduced in the court book, about the publication and persons responsible for it.
On 11 February 2009 the Tribunal wrote a second letter to the applicant informing him of the results of further inquiries made by the Post following receipt of his documentation. This information confirmed the previous information and indicated that neither the publication itself, nor those persons who were said to have been producing it, existed. The Tribunal also pointed out that the Post had advised false reporting in both genuine and bogus newspapers as well as electronic and print media is not uncommon in Pakistan.
On 6 March 2009 the applicant sought further time to respond and on 3 April he sent a further written response, together with 14 additional documents. Interestingly, only two of the 14 documents were dated. The applicant also provided another copy of a document previously supplied.
“The applicant also enclosed another copy of the “declaration of the publisher” in the name of Muhammed Ashfaq Ahmad Rana. All the details in this document match the earlier copy provided to the Tribunal, however, the signature of the District Co ordination Officer Okara is different in the later document.” [CB 172].
The finding of the Tribunal was that it accepted that the applicant had joined his father as a member of the PML (Q) and had provided articles from reputable independent newspapers reporting on his visit to Qatar as a member of the PML (Q) youth wing but it did not accept that he later became a leader or an activist within the party or became a portfolio general secretary in 2005. The Tribunal took the view that the applicant just did not have enough knowledge of the structure and organisation of the party or was able to describe in any real detail the activities he had been involved in. The Tribunal did consider whether, being a member of this party which was now in decline since President Musharraf had stood down, would itself be a ground for providing the applicant with protection, but concluded from the independent country information available to it that apart from some reports of isolated and random incidents in which PML (Q) members were harassed or harmed in 2008:
“There is no reporting of wide-scale systematic and discriminatory actions taken against members or former members of the PML (Q).” [CB 178].
The Tribunal’s grounds for not accepting the applicant’s claims to have been the subject of an attack as a result of his anti-terrorist speeches was because it could not accept the veracity of the documentation that he provided.
“I have carefully weighed the evidence provided by the applicant with the results of inquiries made by the DFAT. I consider the results of the inquiries made by DFAT indicate that the Weekly Shehri Report does not exist and the publication is a bogus publication and has been brought into existence for the purpose of supporting the applicant’s refugee claims in Australia. In coming to this conclusion I have taken into account the number and breadth of the inquiries made by DFAT and the absence of any credible and independent reports or evidence suggesting that the newspaper exists or that M. Ashfaq Ahmad Rana is the publisher of such a newspaper. In particular, I note that the District Information Officer from Okara wrote to DFAT in December 2008 to advise that the Weekly Shehri Report does not appear in Okara and is not published by the Pak Punjab Printing Press Okara. This is despite the applicant presenting to the Tribunal a document purporting to be a declaration of the publisher and printer which is dated, has a reference number and carries a signature of the same District Information Officer from Okara.” [CB 179]
The Tribunal also considered that the applicant could not satisfy it that he had a well-founded fear of persecution having waited a considerable time before leaving Pakistan following the alleged assault.
The applicant filed with this court on 26 June 2009 an application seeking judicial review of the Tribunal’s decision. The applicant tells me that the document was prepared for him by a distant relation. He told me that he had read through the document and agreed with it but I do not think this is likely because the document contains a number of allegations which clearly do not relate to the applicant’s claims. The first ground of the application, numbered (2) in the grounds, suggests that the Tribunal would have had a perceived bias against the applicant. It then goes on to make reference to the decision being remitted when there was never any remittance of the matter from this court to the Tribunal. Perhaps what the author was referring to was the “remittal” of a matter from the delegate to the Tribunal.
The first particular, which seems to be the most comprehensive, suggests that the applicant was not given an opportunity to have his case heard. No particulars of this are provided and the applicant would not deny that he appeared before the Tribunal and put his claims to it. There is a reference to the fact that the newspapers were bogus and a suggestion that an affidavit and witness should be sufficient for the Tribunal. It is said that the publication is a well known newspaper. This is no more than an agitation for merits review and cannot be accepted by this court. The other particulars are themselves devoid of particularisation and it is difficult to understand from them exactly what vice the writer is attempting to illuminate. I am afraid that I am unable to see one.
Ground 3 of the application refers to procedural unfairness claiming that the Tribunal did not address specific issues. There is then, in the guise of particulars, some submissions on the law of apprehended bias and reference to a number of well known cases such as NADH of 2001 v Minister for Immigration [2004] FCAFC 328, and NALQ v Minister for Immigration [2004] FCAFC 121. One of the particulars makes further reference to a newly constituted hearing which never occurred. There are no particulars of the alleged apprehended bias by reference to the evidence given by the applicant or the views expressed by the Tribunal.
The fourth ground makes reference to a breach of s.424A claiming in the particulars that the Tribunal did not provide the applicant with an opportunity to comment on information pursuant to that subsection. As has already been noted the Tribunal wrote two letters to the applicant under s.424A and not only offered him an opportunity to reply but noted that it was an opportunity that he had taken up. The Tribunal considered the information that he provided. On the first occasion it sent that information back to Post for the purposes of further elucidation. That it was not prepared to do this on the second occasion was entirely within its jurisdiction given the nature of the information provided by the applicant which was undated and clearly considered by the Tribunal to be of doubtful veracity given the independent country information which it had about bogus documentation from Pakistan.
The fifth ground is one of constructive failure to exercise jurisdiction. It makes the claim that the Tribunal did not direct the hearing to specifics and let the hearing continue a general uncharted course. My reading of the Tribunal’s decision document does not confirm that view but the applicant has provided no transcript and has failed to satisfy me that there is validity in this claim. The document then continues with a reference to a finding in relation to State protection not having been made. A finding in relation to State protection is only required when a Tribunal comes to the view that an applicant has suffered harm and is likely to suffer harm should he or she return to his or her native country. This Tribunal came to the conclusion that the applicant had suffered no harm.
The next ground is headed “Unreasonableness” and a claim is made that the Tribunal’s decision is illogical or manifestly unreasonable and affected by Wednesbury unreasonableness. The first five particulars are assertions without any reference to the Tribunal’s decision. The sixth particular, whilst claiming Wednesbury unreasonableness, actually claims bias by the Tribunal for refusing to accept the genuineness of the newspaper article. The Tribunal has given good reasons for not accepting that article and far from suggesting a mind which approached the question with a predetermined conclusion, as suggested by the applicant, the fact that the Tribunal sought from Post some information relating to the documentation is proof positive that the Tribunal had an open mind on the matter. The application then proceeds with yet another claim that the Tribunal did not consider effective State protection. I have already dealt with the lack of necessity for such an inquiry.
The next ground is headed “Procedural Unfairness – Convention Reason Not Pursued.” It says that the applicant’s claims were based on seeking protection based on Convention reasons but it does not tell us which specific claims were not considered.
The application proceeds with a claim entitled “Social Class and Failure to Take into Account Relevant Considerations”. After six subparagraphs discussing the Convention ground of being a member of a particular social group, the applicant claims that he belonged to a particular social group of persons who were perceived to be “single and wealthy”. He says that the particular characteristics of this social class were “a nuclear group of single businessmen” who, it would appear, are prejudiced by their lack of extended family support, their high vulnerability to attacks because of racial and political indifference, and their high vulnerability to attacks based upon the perception of their being wealthy. The applicant charged the Tribunal for failing to identify him as a member of this vulnerable group, but as he never made a claim to be such a person, it seems unfair of him to cast this aspersion upon the Tribunal member.
As Healy J said in SZATG v Minister for Immigration [2004] FCA 1595 at [36]:
“It was for the applicant to put forward the information and materials on which he relied in support of his claims.”
In SBBA v Minister for Immigration [2003] FCAFC 90 the Full Bench Weinberg, Stone and Jacobson JJ, said at [8]:
“It is well established that all substantive issues raised by the evidence before the Tribunal must be considered even if an applicant does not articulate all such claims; Sellamuthu v Minister for Immigration and Multicultural Affairs[1999] FCA 247; (1999) 90 FCR 287 at 294; and Kalala v Minister for Immigration and Multicultural Affairs[2001] FCA 1594 at [24]. It is, however, no part of the Tribunal's function
`to make good a case, which the applicant has not articulated, only because there is some evidence of elements of a claim.'
Parra v Minister for Immigration & Multicultural Affairs[2000] FCA 85 at [13].”
The applicant then proceeds to make reference to relocation and claims that no finding in relation to relocation appears to have been made. If there is no finding by the Tribunal that relocation is a possibility then there is no matter upon which the applicant can complain. In this case there was a perfunctory discussion between the applicant and the Tribunal about relocation; but given the Tribunal’s conclusions that the applicant was not a person with a well-founded, or indeed, any fear of persecution in Pakistan there was no need for him to relocate should he return.
Finally, the applicant makes reference to “well-founded fear” consideration and claims that the Tribunal failed to consider his claim. With respect to the applicant, the whole of the Tribunal’s grounds of decision are addressed to this very point.
The applicant appeared before me today. The matters which he raised went mainly to the facts of his case. The concept of judicial review is difficult enough for most persons to understand that this court should be patient with applicants who believe that they can re-agitate matters that were before the Tribunal. The distinction between an appeal and judicial review is complex but I would point out to the applicant that the Full Bench in NAAH v Minister for Immigration [2002] FCAFC 354 said at [27]:
“For a court to set aside a negative decision on the basis that a reasonable decision-maker ought to have achieved the requisite level of satisfaction on the material that was before the actual decision-maker would be to travel far beyond any of the well-established circumstances in which courts can set aside administrative decisions. In effect, it would be to substitute the court's view of the facts for that of the decision-maker, a course traditionally regarded as not open to courts.”
This application must be dismissed. The applicant has not satisfied me that any of his claimed grounds of jurisdictional error can be made out. The applicant shall pay the first respondent’s costs which I assess in the sum of $4,200.00.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: 12 November 2009