SZOWT v Minister for Immigration
[2011] FMCA 540
•27 June 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZOWT v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 540 |
| MIGRATION – Application to review decision of the Refugee Review Tribunal – whether Tribunal fell into error in failing to take oral evidence from proposed witnesses. |
| Migration Act 1958 (Cth), ss.44A, 91R, 426, 427 |
| Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123; [2009] HCA 39 Minster for Immigration and Multicultural Affairs and Indigenous Affairs v Katisat [2005] FCA 1908 SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18; [2007] HCA 40 |
| Applicant: | SZOWT |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2780 of 2010 |
| Judgment of: | Barnes FM |
| Hearing date: | 27 June 2011 |
| Delivered at: | Sydney |
| Delivered on: | 27 June 2011 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the Respondents: | Mr J Smith |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application is dismissed.
The applicant pay the costs of the first respondent fixed in the sum of $5,865.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2780 of 2010
| SZOWT |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from Transcript)
This is an application for review of a decision of the Refugee Review Tribunal dated 17 November 2010. The Tribunal affirmed a decision of the delegate of the first respondent not to grant the applicant a protection visa.
The applicant, a citizen of Pakistan, arrived in Australia in February 2007 and applied for protection in March 2010. In connection with his protection visa application he claimed, in essence, that he had established a local office of the Muthida Qaumi Movement (the MQM) in his hometown in Pakistan (which I will refer to as “A”) and that because of his political views he was threatened and beaten.
He attended an interview with the delegate on 15 June 2010. While the matter was before the Department the applicant provided supporting documentation, including a copy of a First Information Report (FIR) in relation to an assault on him said to have occurred on 25 May 2006 and two supporting statements from persons who said they had witnessed the altercation that was the basis for the report.
The application was refused and the applicant sought review by the Tribunal. By letter dated 25 August 2010 the Tribunal invited the applicant to attend a hearing on 28 September 2010. It is apparent from Tribunal file notes in the Court Book that there were discussions between the applicant and the Tribunal in which he claimed that he had not received a copy of that letter. A case note records that on 6 September 2010 the applicant collected by hand from the Tribunal what is described as an “RTHI” which I am satisfied can be inferred to be a Response to Hearing Invitation form.
The first respondent tendered a copy of the Response to Hearing Invitations form completed by the applicant on 22 September 2010 in which the applicant requested the Tribunal to take oral evidence from two named persons, his brother and a person described as his “elder brother’s acquaintance”. He provided addresses and telephone numbers in Pakistan for those persons. Under the heading “Describe this person’s evidence and how it is relevant to your case” the applicant stated in relation to his brother’s acquaintance that “This person is one of the witnesses who saw me get beated (sic) up and took me to hospital with my brother.” The relevance of the applicant’s brother’s evidence was said to be: “He is my brother and was called by someone for my rescue and took me to hospital.”
The applicant attended the Tribunal hearing on 28 September 2010. After the hearing the applicant provided the Tribunal with a copy of his MQM membership card and passport.
The Tribunal wrote to the applicant on 11 October 2010, apparently pursuant to s.424A of the Migration Act 1958 (Cth) (“the Act”), putting to him information which in essence consisted of inconsistencies in his evidence and giving him an opportunity to comment, which he did.
In its reasons for decision the Tribunal set out in detail the claims made by the applicant, it described inconsistencies in his evidence about when he joined the MQM and his explanations in that respect.
Relevantly, having regard to the grounds relied on in these proceedings, the Tribunal referred to the documents provided in support of the protection visa application. It noted that a copy and certified translation of the FIR registered on 25 May 2006 had been provided and that the applicant’s account of the events as recorded in the FIR generally corresponded to his written claims. It also noted that the two supporting letters from people he claimed were responsible for rescuing him on that day were nearly identical in describing the claimed events of 25 May 2006 and how they had stopped two bearded men beating the applicant and assisted him with seeking medical treatment.
The Tribunal referred to the applicant’s evidence in his interview with the delegate (part of which was subsequently put to him pursuant to s.424A of the Act) and described what occurred in the Tribunal hearing. Relevantly, the Tribunal recorded that it asked the applicant about his nominated witnesses. He explained that they wished to provide evidence in relation to the circumstances of the assault perpetrated on him in May 2006 and why it happened. The Tribunal recorded that it had noted that it was reluctant to contact the witnesses by telephone as it “could not be confident about the identity of the person on the other side of the telephone line”. However the Tribunal told the applicant that if he wished to provide written statements from any witnesses, it would consider that evidence.
The Tribunal also discussed with the applicant the possibility that he could relocate to another part of Pakistan outside his locality.
In its findings and reasons the Tribunal found that the applicant’s claims were centred upon the significant role he claimed to have played in establishing the MQM in his hometown and taking charge of a party unit in the area. The Tribunal expressed doubts as to the veracity of aspects of the applicant’s claims, finding them undermined by various factors, including the fact that his MQM membership card bore a date earlier than the date he claimed to have joined and that it had an address for the party in A notwithstanding that the applicant’s claim was that after he joined the MQM he was involved in starting up the activities of the MQM in A.
The Tribunal addressed differences in the applicant’s claims in that regard in his protection visa application and at interview with the delegate. He had initially claimed he was involved in forming a local unit of the MQM in A in March 2005, but at the interview with the delegate he claimed he joined the MQM in May 2005 and that it did not officially start operating in A until March 2006. At the Tribunal hearing he reverted to his written claims that he joined the MQM in March of 2005, that the MQM had no presence in A at that time and that he set up the party in A and then took charge of a unit in the area. The Tribunal also had regard to the fact that the membership card provided after the hearing had a different date for his membership. It had been issued in December 2004 and indicated that at that time the MQM had an office in A.
The Tribunal considered the applicant’s explanation for these differences. The Tribunal accepted that the applicant may have mixed up March and May 2005 at interview, but found his explanations in relation to the membership card unsatisfactory for reasons which it gave. In particular, it found his explanation that in December 2004 his cousin and a party convener had issued him with a membership card bearing a speculative address for the party office in A which physically did not exist at that time or that he had received the card some time later bearing the December 2004 date of issue because it was at around that time he had expressed an interest in joining the party to be “outlandish and unpersuasive”. It also had regard to the fact that he did not explain why he had expressly stated at the interview that his membership card was issued by party headquarters in Karachi because MQM did not officially start operating in his home town until March 2006.
The Tribunal found that the “information on the applicant’s membership card and his explanations significantly undermine the veracity of the applicant’s claims regarding the date he joined the party and his claimed role in establishing the party in [A]”. It was of the view that the MQM had been established in the area before the applicant joined it and that he had significantly exaggerated his role and profile. The Tribunal did not accept that the applicant was responsible for establishing or forming the MQM in his area, that he was in charge of any unit or that he had a leading role in the organisation in the area.
The Tribunal was prepared to accept that the applicant was an ordinary member of the MQM in Pakistan and that he may have been involved in some party-related activities, including doorknocking, attending meetings and offering assistance to local residents. It also was prepared to accept that local Islamic parties were opposed to the MQM’s liberal secular platform; that they may have turned their attention to local MQM activities and membership; that the applicant had received anonymous telephone threats and a threat from a neighbouring Imam as claimed; and relevantly, that in May 2006 he was assaulted by two unidentified men, sustaining lacerations and superficial injuries. The Tribunal accepted that this assault was perpetrated on the applicant for reason of his MQM-related activities and that it was possible that although he reported the matter to the local police, no further action was taken by the local authorities.
The Tribunal also accepted that the applicant reduced his political activities by September 2006 and stopped altogether in about December 2006 and that this may have been in response to the threats of harm he had received.
The Tribunal addressed other aspects of the applicant’s claims, including his claim that he had joined the MQM because he wanted to avoid being recruited into Islamic parties and that if he returned to Pakistan he would be asked to join one. It was not satisfied, based on his claims and the information before it, including country information, that the applicant was ever pressured or would be forced to join any Islamic group, party or organisation if he returned to his home town.
The Tribunal was however of the view that the applicant’s past treatment amounted to serious harm for the purposes of s.91R(1)(b) of the Act, that his political opinion was the essential and significant reason for the harm he suffered and that if he were to return to A and continue his activities at the same level as he had done in the past, the possibility that he may face similar treatment could not be ruled out.
In other words, the Tribunal was satisfied there was a real chance the applicant would face significant harassment or serious physical harm at the hands of the MQM or affiliated parties or other Islamic groups in his home region in Pakistan and that this amounted to serious harm constituting persecution within the Act and was for a Convention reason.
However the Tribunal found that even if an applicant had a well-founded fear of persecution in his or her home region, the Refugees Convention did not provide protection if they could nevertheless avail themselves of the real protection of their country of nationality elsewhere within that country.
Based on the evidence before it and the applicant’s circumstances, the Tribunal found that the applicant’s fear of persecution was localised and confined to A. It accepted that Islamic parties and organisations in his locality did not want the MQM to expand its activities in the area. However the Tribunal was of the view that it would be reasonable for the applicant to relocate safely to a different locality or a different part of Pakistan well away from his locality in order to avoid the harm he feared.
The Tribunal referred to a number of factors in reaching this conclusion, including the applicant’s youth, education, the fact that he was a single male who had proven his resilience and capacity to survive in an alien environment by being able to live and survive in Australia over the past three years, that he had qualifications in IT and had been able to find work in Australia and continued to be employed in a dual capacity in an electronics company in Sydney.
The Tribunal acknowledged that the applicant may not be able to visit his immediate family in A, but had regard to the fact that he did not claim that his immediate family would be prevented from visiting him if he were to relocate internally in Pakistan.
The Tribunal also had regard to its finding that the applicant was an ordinary member of the MQM who was not involved in significant political activities and lacked a high profile, let alone outside of his locality. It addressed independent country information about the situation of the MQM in Pakistan, including its position as part of coalition governments at the national level and in Sindh province and the evidence that MQM members did not appear to be particularly targeted in Karachi, notwithstanding eruptions of violence.
The Tribunal addressed the applicant’s claims that Islamic parties had a presence in Karachi, although they were silent and did things “by hidden way”. However it found on his evidence that his cousins, who were members of the MQM, lived in Karachi and that he did not claim that they had experienced any difficulties at the hands of Islamic parties in Karachi. Further, it found that the applicant did not claim to have been involved in any violent activities in the past and if he was apprehensive of the sporadic violence in Karachi, it was open to him to relocate to other urban areas in Pakistan, such as Hyderabad, where the MQM remained influential. The Tribunal considered his claim that violence happened everywhere in Pakistan, but found no information in the sources it had consulted to suggest that MQM members and its supporters were experiencing any particular difficulties in Hyderabad. The Tribunal also noted that the applicant’s friend had internally relocated to Rawalpindi and that the applicant did not claim that he had continued to experience difficulties as a consequence of his involvement with the MQM.
The Tribunal addressed the applicant’s claims about the assassination of an MQM leader in London, but found that he had failed to explain how the assassination of a high profile MQM leader in London related to or reflected his circumstances. It was of the view that the particular circumstances of that person were not reflective of the situation of every member of MQM across Pakistan.
In addition, while the Tribunal had regard to information in relation to clashes between student branches of the MQM and the Islami Jamiat Talaba (IJT) on university campuses, it found that the applicant did not claim that he intended to enter university if he returned to Pakistan and that there was no information to suggest that MQM members were systematically targeted by IJT across Pakistan.
The Tribunal then had regard to its conclusions about the applicant’s past activities. It acknowledged that after being assaulted in A the applicant had reduced his political activities and at some point had stopped them altogether. However it found that such activities at their height were confined to distributing literature, doorknocking and attending meetings, that the applicant was not part of the party hierarchy and that he did not have a high profile. It also had regard to the fact that the applicant had been in Australia for two years and, apart from renewing his membership, had not engaged in MQM-related activities in Australia.
It found that the applicant did not claim, and there was nothing in his evidence to suggest, that he would take a more active role in the MQM than at any point in his past if he were to return to Pakistan. It was of the view that the applicant’s apparent lack of interest in being involved in the MQM in Australia and the level of his non-violent political involvement with the MQM in Pakistan before being assaulted suggested that if he were to return to Pakistan “at best, he would continue to engage in MQM related activities at the same level he had engaged in prior to any modification to his political activities” after the assault.
The Tribunal was satisfied that if the applicant relocated to a different part of Pakistan and continued to engage in political activity at the same level as the height of his activities in the past there was no real chance he would face harm by members and supporters of the Muttahida Majlis-e-Amal (MMA), IJT or any other Islamic or political group or organisation.
On the evidence before it, having regard to the applicant’s circumstances overall, the Tribunal was satisfied the applicant could reasonably be expected to relocate safely to a different part of Pakistan.
For these reasons the Tribunal was not satisfied that the applicant’s fear of persecution in Pakistan for reason of his political opinion, religion or other Convention reason was well-founded. It affirmed the decision of the delegate of the first respondent.
The applicant sought review by application filed in this court on 22 December 2010. In addition to the application and accompanying affidavit, the applicant filed two further documents on 16 March and 17 May 2011 described as affidavits which, in effect, contain submissions addressing his claims.
The first substantive ground expressed concern about the Tribunal’s failure to contact the persons the applicant requested the Tribunal to take oral evidence from at the Tribunal hearing. The applicant claimed the witnesses in his case were important and that they were not contacted although the Tribunal had been given their complete contact details. He submitted that the Tribunal had failed to take into account the witnesses and that this involved a “lack of interest” or “was not a thorough review”.
As set out above, in his Response to Hearing Invitation form the applicant provided the Tribunal with details of two persons and requested that the Tribunal take oral evidence from those people. The Tribunal decided not to do so for reasons which it set out in its reasons for decision.
There are a number of ways in which the applicant may be intending to suggest that the Tribunal fell into error, although there is no reference to any particular provision in the Act. The first respondent’s submissions addressed such possibilities.
The first issue is whether s.426 of the Act gave rise to any obligation to take oral evidence from the proposed witnesses. It is as follows:
Applicant may request Refugee Review Tribunal to call witnesses
(1) In the notice under section 425A, the Tribunal must notify the applicant:
(a) that he or she is invited to appear before the Tribunal to give evidence; and
(b) of the effect of subsection (2) of this section.
(2) The applicant may, within 7 days after being notified under subsection (1), give the Tribunal written notice that the applicant wants the Tribunal to obtain oral evidence from a person or persons named in the notice.
(3) If the Tribunal is notified by an applicant under subsection (2), the Tribunal must have regard to the applicant's wishes but is not required to obtain evidence (orally or otherwise) from a person named in the applicant's notice.
The Tribunal notified the applicant of the invitation to give evidence and the effect of s.426(2) of the Act in its letter of 25 August 2010.
There are several obstacles to the application of this provision. In oral submissions Counsel for the first respondent pointed to the fact that this provision applies where an applicant has given the Tribunal written notice of potential witnesses within seven days after being notified. It was submitted that even if one had regard to the latest time of actual notification of 6 September 2010 (when the applicant apparently picked up a Response to Hearing Invitation form from the Tribunal) as distinct from any earlier date of deemed notification of the invitation to the hearing, the applicant did not give written notice to the Tribunal within seven days of such notification that he wanted the Tribunal to obtain oral evidence from the witnesses.
Technically, this is correct. The response to hearing invitation form was dated 22 September 2010. There is no suggestion that it was given to the Tribunal prior to that time.
In any event, the critical issue is that while the Tribunal must have regard to the applicant’s wishes under s.426(3) of the Act, it is not required to obtain evidence, whether orally or otherwise from a person named in the applicant’s response to hearing invitation form or other notification of proposed witnesses.
As Counsel for the first respondent pointed out, a similar provision in relation to the obligations of the Migration Review Tribunal was considered in Minster for Immigration and Multicultural Affairs and Indigenous Affairs v Katisat [2005] FCA 1908. Bennett J pointed out that the Tribunal is under no duty to inquire in the particular circumstances of the equivalent to s.426(3) of the Act. In this instance, the Tribunal clearly considered the applicant’s request. It gave reasons for its decision not to telephone the suggested witnesses and gave the applicant the opportunity to provide further written evidence.
More generally, there is nothing in the circumstances of this case to suggest that a duty on the Tribunal to make further inquiries of the named persons arose, whether under s.427 of the Act (which gives the Tribunal power in that respect) or more generally. It has not been established that the Tribunal had a duty to inquire consistent with the principles considered by the High Court in the Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123; [2009] HCA 39. This is not a case in which there was a failure to make an obvious inquiry about a critical fact, the existence of which was easily ascertained, such as to give rise to a jurisdictional error. It is apparent that the persons who were nominated as potential witnesses were to give evidence as to what they saw and what they heard in relation to the 2006 assault incident. That is consistent with the two written statements (one of which was apparently from one of the nominated witnesses) provided to the Department and also with what the Tribunal recorded in its reason for decision.
However, relevantly, the Tribunal accepted the applicant’s evidence and claims as to what occurred to him in the incident in May 2006, in particular that he was assaulted by two unidentified men and that the assault was perpetrated on him for reasons of his MQM-related activities. The Tribunal also accepted that it was possible that although he reported the matter to the local police, no further action was taken by them.
Hence this is not a situation in which any suggested oral evidence of or other inquiry to these persons could have made any difference to the outcome of the Tribunal decision.
There was no suggestion by the applicant or in the material before the court that there was any other relevant evidence that such persons could or would have given that was not of this nature.
In these circumstances, it has not been established that any further evidence from these witnesses could have affected the Tribunal’s decision. Hence, whether considered in light of the Tribunals statutory obligations or under the rules of procedural fairness, it has not been established that the Tribunal made a jurisdictional error.
In oral submissions in reply, the applicant appeared to suggest that it would have been open to the Tribunal (if it did not agree with him and was concerned that it would not know who it was talking to if it telephoned witnesses) to have met their expenses so that they could have come to Australia to give oral evidence to the Tribunal.
There is no evidence that such a suggestion was put to the Tribunal. The possibility that the applicant raises is not such as to establish any jurisdictional error in the manner in which the Tribunal dealt with his request that it take oral telephone evidence from two named persons.
As noted, according to the reasons for decision (the only evidence of what occurred in the Tribunal hearing) the Tribunal told the applicant that while it would not contact the proposed witnesses by telephone, if he “wished to provide written statements from any witnesses the Tribunal will consider that evidence”. There is no indication of any such further evidence having been provided to the Tribunal or any indication from the applicant that he sought time to do so. There was a reasonable amount of time after the Tribunal hearing in the course of which the Tribunal wrote to the applicant to put information to him. He responded to that information by response received on 3 November 2010.
In these circumstances no jurisdictional error has been established arising out of the Tribunal’s failure to take oral evidence, or evidence in any other manner, from the persons named on the response to hearing invitation form.
The applicant also takes issue with what he appears to see as a contradiction in the fact that the Tribunal was satisfied that he had a fear of persecution if he returned to his home town in Pakistan and continued his activities at the same level but that it did not make a decision in his favour. Such a contention in effect takes issue with the Tribunal’s conclusion that it would be reasonable for the applicant to relocate safely to a different locality or a different part of Pakistan.
As stated by Gummow, Hayne and Crennan JJ in SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18; [2007] HCA 40 (at [19]):
…the matter of "relocation" finds its place in the Convention definition by the process of reasoning adopted by Lord Bingham of Cornhill in Januzi v Secretary of State for the Home Department. His Lordship said:
"The [Convention] does not expressly address the situation at issue in these appeals where, within the country of his nationality, a person has a well-founded fear of persecution at place A, where he lived, but not at place B, where (it is said) he could reasonably be expected to relocate. But the situation may fairly be said to be covered by the causative condition to which reference has been made: for if a person is outside the country of his nationality because he has chosen to leave that country and seek asylum in a foreign country, rather than move to a place of relocation within his own country where he could have no well-founded fear of persecution, where the protection of his country would be available to him and where he could reasonably be expected to relocate, it can properly be said that he is not outside the country of his nationality owing to a well-founded fear of being persecuted for a Convention reason."
It has not been established that the Tribunal fell into error in the manner in which it considered and applied the law in relation to relocation. It considered all the evidence before it. In particular, the Tribunal set out in some detail the applicant’s personal circumstances and considered those personal circumstances. It also considered apparent obstacles to relocation raised by the applicant in light of his evidence and country information to which it referred. It addressed specifically the likelihood or possibility of the applicant again engaging in political activities as a member of the MQM should he return to Pakistan and the risk of persecution were he to do so somewhere else in Pakistan other than his home area. It has not been established that it misunderstood or misapplied the law.
The Tribunal’s conclusion that the applicant could reasonably be expected to safely relocate to a different part of Pakistan has not been shown to involve any jurisdictional error.
In particular, the Tribunal’s conclusion that the applicant was not a refugee was not in law inconsistent with its earlier finding that the applicant faced a real chance of Convention-based harm if he was to return to his home town of A and take up his political activities again.
In addition the applicant took issue with the Tribunal’s findings, claiming that all his claims were true and correct. In so far however as he seeks merits review, merits review is not available in this court. The issue that he takes in relation to the factual findings of the Tribunal and his disagreement with its conclusions is not such as to establish jurisdictional error.
No jurisdictional error has been established on any of the bases contended for the by the applicant. Hence the application must be dismissed.
The applicant has been unsuccessful and there is nothing in the circumstances of this case to warrant a departure from the normal principle that the unsuccessful applicant should meet the costs of the first respondent. The amount sought is appropriate in light of the nature of this and other similar matters.
I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of Barnes FM
Date: 14 July 2011
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