SZNUN v Minister for Immigration
[2010] FMCA 247
•14 April 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNUN v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 247 |
| MIGRATION – Review of Refugee Review Tribunal decision based on refusal of a Protection (Class XA) visa – no reviewable error – application dismissed. |
| The Applicant in these proceedings is not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) and has been given the pseudonym “SZNUN”. |
| Migration Act 1958 (Cth), ss.91X, 424A, 425 Federal Magistrates Court Rules 2001 (Cth), r.44.05 |
| Minister for Immigration & Citizenship v SZLFX [2009] HCA 31 Minister for Immigration & Citizenship v SZMOK [2009] FCAFC 83 SZDGC v Minister for Immigration & Citizenship [2008] FCA 1638 SZNGR v Minister for Immigration & Citizenship & Anor [2009] FCA 1301 Re Minister for Immigration & Multicultural Affairs; ex parte Applicant s20/2002 [2003] HCA 30 |
| Applicant: | SZNUN |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1849 of 2009 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 8 February 2010 |
| Delivered at: | Sydney |
| Delivered on: | 14 April 2010 |
REPRESENTATION
| The Applicant: | The Applicant appeared in person with the assistance of an Urdu interpreter |
| Counsel for the Respondents: | M. Palmer (Solicitor) |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application filed on 3 August 2009 is dismissed.
The Applicant is to pay the first Respondent’s costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1849 of 2009
| SZNUN |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The proceedings
The Applicant was born in Lahore, Pakistan in 1972. He gives his religion as Islam. He was educated for 14 years in Lahore, concluding in 2001. He claims to have his own business but gives no details as to the nature of his enterprise.
In his Protection visa application, the Applicant claims the following:
a)Political enemies are threatening him;
‘I was the representative of a political party. My opponents succeeded in election 2008. They started to threaten me for my life. They attempted to kill me twice. I reported to the local police station and asked for protection. But police did not take notice of that activities. I did not find any way other that to leave Pakistan. I arranged for Australian visa and left Pakistan to save my life’.”
b)He fears that his political opponents in Pakistan will make it hard for him to live there and try to kill him;
c)He is afraid of the “Muslim League (N)” leaders ruling Pakistan who may harm him “due to the favour to my party. They know I am the main representative of my party”; and
d)The police have not protected him previously and will not do so when the Muslim League (N) is in power.
A Court Book (“CB”) was prepared by the first Respondent’s solicitors and marked Exhibit “A”. This is the only evidence before the Court.
At the first court date directions hearing, the Applicant was granted leave to file an amended application. Consequently, the Applicant filed an amended application on 9 October 2009 which contains the following grounds:
The Tribunal ignored a request from the Tribunal for further time to present evidence of his claims that he was expecting to receive by mail from overseas. In doing so the Tribunal failed to exercise its jurisdiction by not giving the Applicant a proper opportunity to present his case.
Particulars
The Applicant wrote to the Tribunal on 30 June requesting more time to provide documents that he was expecting in the mail (CB 68). The Tribunal did not refer to that request in its decision dated 9 July 2009.
Background
The Applicant is a citizen of Pakistan and arrived in Australia on 23 November 2008 on a Business (Short Stay) Visa. He applied to the Department of Immigration and Citizenship for a Protection (Class XA) visa on 5 January 2009. The delegate refused to grant the visa on 26 March 2009 and notified the Applicant of the decision and his review rights by letter dated the same day. The delegate found that the Applicant’s fear of persecution based on his political involvement was not credible (CB 80, at [55] – [56]).
The delegate found that the Applicant proved to be an unimpressive witness whose evidence was vague and uninformative, particularly on relatively simple and factual issues (CB 80, at [57]). The Tribunal found, that when speaking of incidents such as the three alleged attacks on him, the Applicant provided little to no circumstantial detail of these events (CB 80, at [57]). The Tribunal found that the Applicant gave an impression of evasiveness at many points and a readiness to modify aspects of his claims when pressed about inconsistencies in them (CB 80, at [57]). The delegate found that these aspects of the Applicant’s evidence raised doubts as to the general reliability of his experiences in Pakistan. The Applicant applied to the Refugee Review Tribunal (“the Tribunal”) for a review of the delegate’s decision.
The Tribunal had specific reservations about the Applicant’s claims to have been involved with a local politician, Tasneem Shafi who is said to have been a member of the Muslim League (Q) “ML(Q)”. The Applicant claimed at the hearing that he was Shafi’s personal secretary and that in this position he worked full time (CB 80, at [58]). When questioned further by the delegate about his employment, the Applicant indicated that he owned a shop which sold appliances, but that this business had been “completely smashed” by his political enemies (CB 80, at [60]).
When questioned further by the delegate, the Applicant indicated that his application for an Australian business visa was made not on the basis of this enterprise, but on his employment by a wealthy friend in the position of “part time marketing manager” (CB 80, at [60]). Further questioning at the Tribunal hearing revealed that the Applicant had been employed by the company since 1988 (CB 81, at [60]). The Applicant claimed that he would work there in the mornings and then work in his shop from noon until seven or eight in the evening however, the delegate found that this claim did not appear compatible with the Applicant’s claim to also work full-time for Tasneem Shafi as his personal assistant (CB 81, at [60] – [61]).
The Applicant claimed that he was able to manage the competing demands on his time, without indicating how exactly this was done (CB 81, at [61]). The Applicant claimed that he had let his own business run down and spent much less time at his marketing job, in order to devote himself to supporting Shafi (CB 81, at [61]). The Tribunal was not satisfied that the Applicant’s explanation was at all plausible considering that, according to the Applicant, working as a personal secretary did not pay very much and, at the relevant time, the Applicant was responsible for providing for his young family (CB 81, at [61]).
The Tribunal was not satisfied (the details are set out below), that based on the Applicant’s evidence, that he was ever employed as the personal secretary of Tasneem Shafi, or that the Applicant was ever involved in political activity on behalf of this person or the ML(Q), or that he was ever imputed with a political opinion in favour of that party (CB 81, at [61] – [64]).
By an application filed on 3 August 2009 under r.44.05 of the Federal Magistrates Court Rules (2001) (Cth) (“the Rules”), the Applicant sought an order that the Respondents show cause why a remedy should not be granted in exercise of the Court’s jurisdiction under s.476 of the Act in respect of the Tribunal decision number 0902989 dated 9 July 2009 of Tribunal Member, Andrew Mullin.
Tribunal decision
The Applicant attended a hearing of the Tribunal on 10 June 2009. The Tribunal considered the Applicant’s claims made to the delegate and the Tribunal and concluded that the Applicant had never been employed by Tasneem Shafi and nor was he ever involved in the political activities on behalf of Mr Sharif or the Muslim league. These findings were based on the Applicant’s uninformative vague and evasive evidence at the hearing (CB 80, at [57]), his implausible evidence as to his various jobs (CB 80, at [60]-[61]), his delay in leaving Pakistan after obtaining his visa and his delay in seeking protection after arrival in Australia (CB 81, at [62]).
After the hearing on 1 July 2009, the Applicant sent a letter to the Tribunal enclosing a copy of his visiting card and stated that he expected to receive further supporting documents from Pakistan (CB [68]-[69]). The Tribunal considered the business card forwarded by the Applicant after the hearing however the Tribunal noted that “…the details concerning the Applicant appears to have been completed in a different typeface from the rest of the card and do not appear to have been printed in the same way as the details of Tasneem Shafi’ (CB 79, at [52]). Consequently the Tribunal was not satisfied that it could give the document any weight (CB 81, at [64]).
In the Tribunal’s “Findings and Reasons” there is a sub-heading “Hearing Issues” where the Tribunal refers to a number of references made by the Applicant at the hearing that he was stressed and mentally affected by his experiences in Pakistan. The Tribunal considered whether the Applicant had been prevented from participating effectively at the hearing and noticed that the Applicant’s evasive and non responsive answers were a result of him being asked to explain basic inconsistencies or improbabilities in his evidence. The Tribunal noted that the Applicant did not claim to have been physically harmed in Pakistan and that he had never sought medical or other advice about his alleged mental problems (CB 62, at [66]-[67]).
The Tribunal did not accept the Applicant’s claims and was not satisfied that he faced a real chance of suffering real harm in the reasonably foreseeable future for a Convention reason.
Consideration
At the first court date directions hearing the Applicant indicated that he wished to participate in the court sponsored RRT legal advice scheme and he was subsequently provided a panel advisor and received written advice from the panel member. In the amended application of 9 October 2009 the Applicant pleaded a single ground that the Tribunal ignored the request “… for further time to present evidence of his claims that he was expecting to receive by mail from overseas”. This was raised as a post hearing issue and the Applicant forwarded to the Tribunal a letter dated 30 June 2009 including a “scanned copy of my visiting card” and indicated that he was expecting further supporting documents which were on either way from Pakistan.
He indicated that this material would be forwarded to the Tribunal upon receipt in the mail. The Tribunal in its decision record states:
47. I invited the Applicant to comment on the information or respond to it, noting that he could do so at once, at an adjourned session of the hearing or in writing, and that he could have further time in which to do so if necessary.
48. The Applicant said he needed time to obtain documents. I suggested that two weeks would be sufficient for this. He asked for more time on the basis that Pakistan had no electricity and there was no continuity in the lighting. After some discussion of this proposition I asked what documents he intended to provide. He suggested it was a ‘personal secretary identity card’. Asked where this card was he said it was at home or in the office of Tasneem Shafi. Asked what would prevent him from telephoning his mother or brother, or Tasneem Shafi, to request them to send it straight away he said they would have to search for it, adding that he had been away for a long time. I noted that he had been in Australia for six months and asked why he would not have brought the card with him. He said he had not come with a plan to be here. I noted that he claimed to have come to escape persecution, and that he must have known this would involve settling in Australia. He said he left Pakistan to protect his life and when he found life was secure in Australia he applied for protection. I noted that he had six weeks between the time he obtained his visa and the time he left Pakistan in which to organise the documents he wished to bring. He said he had needed to research conditions in Australia after arriving. I asked why he would have chosen to come if he knew nothing of the conditions here. He said he had been very tense and there were financial problems, so he wanted to get out of Pakistan.
49. Asked what other documents he wished to submit the Applicant said he would provide anything the Tribunal wanted. I explained that it was not for the Tribunal to tell him what documents to submit. He said he wanted more time to give something in writing as more proof. I asked what this would be. He repeated that he would submit whatever was wanted. I explained again that the Tribunal could not tell him which documents to submit, and that I was not prepared to agree to additional time without some idea of the documents he had in mind. After a pause, he suggested it would be ‘something to prove I had a link with that Party’. He confirmed that he did not know exactly what this material would be. I agreed to allow him three weeks in which to submit these any documents.
The Tribunal noted that it received a facsimile submission from the Applicant which he stated that he attached a scanned copy of his visiting card and indicated that other documents were on the way and would be posted to the Tribunal on their receipt (CB 79 at [52]). The Tribunal considered this request but in the absence of any details as to what the documents were and given that no documents arrived in the week between the submission and the date of the decision, the Tribunal was not satisfied that any good purpose could be served by granting the Applicant additional time to submit additional documents (CB 82 at [65]).
The Tribunal’s reasons show that it properly addressed its discretion to allow the Applicant more time to present his evidence. The Tribunal is not obliged by the provision of the Act, in so far as they encompass procedural fairness to proceed to the Applicant’s further request for more time: SZNGR v Minister for Immigration & Citizenship & Anor [2009] FCA 1301.
In the written submissions relied upon by Ms Palmer it is noted that the Tribunal did not simply reject the business card based on its adverse view of the Applicant’s credibility. Rather it assessed the document independently and relied on an anomaly contained in the document itself and the Applicant’s oral evidence to support its general adverse credibility finding: Re Minister for Immigration & Multicultural Affairs; ex parte Applicant s20/2002 [2003] HCA 30 per McHugh and Gummow JJ at [49] and SZDGC v Minister for Immigration & Citizenship [2008] FCA 1638 at [27].
The Tribunal made it abundantly clear to the Applicant that it had concerns about his claims to be secretary of the local politician when he was not a member of the Muslim league (Q). Moreover the Tribunal discussed with the Applicant the type of documents he was going to provide in support of his claim and it was clear to him that such documents may not be accepted by the Tribunal. The Applicant had been given the opportunity to give evidence and present argument relating to this issue and as a result there was no failure to comply with s.425. The fact that the document was not given any weight was not information that fell within s.424A: Minister for Immigration & Citizenship v SZMOK [2009] FCAFC 83 at [74]; Minister for Immigration & Citizenship v SZLFX [2009] HCA 31.
The single ground pleaded in the amended application cannot be sustained and should be dismissed.
Conclusion
The Applicant in these proceedings is a self represented litigant who is assisted by an Urdu-English interpreter. The Applicant has received assistance from a legally qualified panel advisor in reviewing his case and subsequent to the advice the Applicant has taken the opportunity to file an amended application. It was apparent at the Court hearing that the Applicant did not comprehend the issue ventilated and the only submission made by him was the further complaint that the Tribunal had not provided him with the opportunity to submit further documentation.
The solicitors for the Respondent have assisted the Court with detailed submissions addressing the issue raised in the amended application and providing the Court with the relevant authorities raised by this issue. I am satisfied that those submissions address the claim made in the pleaded ground and that it cannot be sustained. On a fair reading of the Court Book and in particular the Tribunal decision, it is not apparent from the face of the documents that any other jurisdictional error was made. Consequently the application should be dismissed with costs.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM
Associate:
Date: 14 April 2010
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