SZQRY v Minister for Immigration - [2012] FMCA 428

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZQRY v MINISTER FOR IMMIGRATION & ANOR

[2012] FMCA 428

MIGRATION – Pakistani Pashtun seaman from Karachi – political claims disbelieved by Tribunal – no jurisdictional error identified – application dismissed.

Migration Act 1958 (Cth)

Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389
SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189

Applicant:

SZQRY

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2216 of 2011

Judgment of:

Smith FM

Hearing date:

16 May 2012

Delivered at:

Sydney

Delivered on:

16 May 2012

REPRESENTATION

Counsel for the Applicant:

In Person

Counsel for the Respondents:

Mr M Alderton

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $4,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2216 of 2011

SZQRY

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 February 2011 as a seaman. He had previously come to Australia about 19 times since 2007. On this occasion, he deserted his ship at Fremantle and came to Sydney. He and two other people lodged applications for protection visas in Sydney on 18 February 2011. Their applications did not identify the people who assisted them to do that.
In the applicant’s application for a protection visa, he explained reasons why he claimed to fear to return to his country of nationality, Pakistan. He said that his family were ethnic Pashtuns who lived in Karachi, where the applicant had been born, and where his family currently lived. He said that his family were involved in politics in Karachi, and:
Our families were attacked by the MQM thugs. ... They have threatened their worker and attacked me and my family. Our lives were in grave danger and that’s why we left the country. I will provide more details in separate statement.
In other parts of the application form, he said that “the MQM is the fascist party in Sindh”, and said:
My family has been a strong supporter of Awami National Party, and we are very active in politics. Due to various incidents where myself and my brother were attacked by the opposite party (MQM) they attempted to kill me and my brother.
The application asserted that the MQM Party had control of the police, so that the applicant would not get protection. No additional statement or supporting documents were provided with the protection visa application.
The Department of Immigration subsequently obtained from the shipping company the applicant’s passport and seaman’s book, and an officer of the Department interviewed the applicant by telephone from Griffith on 7 April 2011.
A delegate made a decision on 11 April 2011, refusing the protection visa application. The delegate found the applicant “to be an unconvincing witness”. He had made inconsistent statements compared to those of another applicant who claimed to be his brother, and showed little personal involvement in politics. The delegate was not satisfied that the applicant had been an activist or member of the ANP, nor that he had been targeted for that reason. The delegate said:
The applicant did not even have a rudimentary knowledge of the ANP, nor could he name the party, despite stating he had attended rallies organised by the party. I consider his claims of attending political meetings to be fabricated.
The delegate did not believe the applicant’s claim of being a victim of extortion. He said that, even if it happened, he did not consider it to have been Convention-related. The delegate said that if the applicant genuinely feared return to Karachi, he could relocate elsewhere in Pakistan. The delegate did not consider that the applicant was a person to whom Australia had protection obligations under the Refugees Convention.
On 7 May 2011, an application for review of the delegate’s decision was lodged by a migration agent, Mr Jayaprakash Hosur, trading as Professional Immigration Services Australia at Parramatta. A covering letter from the agent enclosed only the relevant application forms and the delegate’s decision. The applicant’s agent did not forward to the Tribunal any additional submissions or documents prior to the applicant attending a hearing of the Tribunal in Sydney on 24 August 2011.
The applicant was offered an opportunity to attend the hearing via videolink from Griffith, but preferred to come to Sydney. The Tribunal’s records indicate that the agent was not present at the hearing. The hearing record indicates that no documents were received at the hearing, but that the applicant’s photo ID card was photocopied.
The Tribunal includes a description of the hearing held on 24 August 2011 in its “Statement of Decision and Reasons”. According to that description, which I accept in the absence of any other evidence, the applicant was interviewed for about two hours about his involvement in politics in Karachi, his claims to have suffered from an extortion attempt, and the applicant’s other reasons for fearing harm in Pakistan. The Tribunal refers to the applicant showing it a letter:
It was a handwritten note telling him that his family had gone to Afghanistan. He stated that the news upset him and he had difficulty remembering his claims.
According to the Tribunal:
34.The applicant stated that the main reason he did not want to return to Pakistan was because a particular group wanted to kill him. He was asked to provide details regarding the group and the reasons they wanted to kill him. The applicant could not initially remember the name of the group. He later stated that it was the MQM and they wanted to kill him because he did not comply with their extortion demands. He stated that on his last visit to Pakistan in 2010, they demanded over $10,000 from him, but he did not give them the money and instead he fled the country. The Tribunal discussed the claim with the applicant and indicated to him that when he described his circumstances to the delegate he told the delegate that they demanded $7,000 and he gave them $2,000. The applicant stated that he was upset with the news that he received from Pakistan, relating to his family being in Afghanistan, and he did not recall what happened to him in Pakistan.
The Tribunal then questioned the applicant about why he claimed to have been targeted by the MQM, and about inconsistencies in what he had told the delegate. The Tribunal questioned the applicant to assess his general knowledge of the ANP party and notorious political events in Karachi.
The Tribunal discussed with the applicant the applicant’s claim that “all Pashtuns from Swat moving to Karachi are targeted by the Taliban”. In response to the Tribunal’s comment that the applicant was “essentially a native of Karachi”, the applicant stated that “he went to Swat Valley from time to time and he still had family there”.
Relevant country information about the applicant’s situation was put to him by the Tribunal for comment, and according to the Tribunal the hearing concluded:
52.The applicant stated that if he is sent back to Pakistan he will be killed by either the MQM or the Taliban. He stated that he had a good life in Pakistan and he would not have abandoned his country and family if he did not fear for his life.
53.The Tribunal commented that it understood that there was political violence and ethnic tensions in Karachi, but it would have to consider whether the applicant faced a particular risk of harm for a Convention related reason. The applicant stated that he feared the Taliban and the MQM. He stated that it was not safe for him in Pakistan and his family has already fled to Afghanistan.
On the morning of the hearing, the Tribunal received a letter from the applicant’s agent, stating:
We are representing the above applicant for the RRT hearing and advise that a submission about his claim, will be forwarded to the department at the earliest.
The agent’s office was contacted by an officer of the Tribunal, who explained “the matter is urgent and needs to be addressed immediately”, and that “the decision in this case is imminent”. A file note of the conversation indicates that the applicant’s agent’s office was told that “there was no discussion held at the hearing about the provision of further documents/evidence and that the decision is imminent”. A later file note shows that the applicant’s agent telephoned the Tribunal, and was told that his letter foreshadowing submissions had been received by the Tribunal.
On 26 August 2011, the agent faxed to the Tribunal a written submission, and no other document. The written submission, at its commencement stated:
We refer to [the applicant’s] appeal for the grant of his permanent residence in Australia under United Nations Convention for Refugees, Protection (Class XA) Visa subclass 866. The applicant is currently living in the state of New South Wales, Griffith and we make this submission in relation to his application for permanent protection.
This application is based on claims that upon return to Pakistan, he would face persecution or discrimination, for convention based reasons including the applicant’s family political opinion in that the family has never been associated with any group and are strong opponents of any fanatic, extremist Islamic parties or groups and for the reason of his ethnicity as a Pashton and his broad outlook on religion.
Background
The applicant has submitted his claims on the basis of which he seeks protection in a statement which has been forwarded to the Department. We ask that this statement be referred to; however the applicant claims to fear persecution because of his family’s refusal to support or be associated with the fanatic, extremist groups and also because of his ethnicity as a Pashton from Swat Valley. The applicant opposes the current Pakistani authorities approach against the tribal people.
The balance of the 11-page submission purported to address a submission that “the applicant cannot relocate within Pakistan because of his specific features”, but the relevance of this to the applicant’s claims was obscure, and it appears to have pertinence to an Afghani refugee living near the Swat Valley. It concluded with the statement:
The applicant and his family has been tortured by the Pakistan Army, please refer to the applicant’s statement of claim for more details.
The Tribunal attempted to relate these submissions to the applicant’s evidence, and said in its statement of reasons:
54.The Tribunal received a submission from the applicant’s adviser on 26 August 2011. He stated that consideration should be given to the claims already provided by the applicant. He further stated that because the applicant’s refusal to support the Taliban and his broad outlook on religion he was at risk of harm. The adviser went on to argue that the applicant cannot be safe through relocation because of his “specific features” and he could not seek protection because that would “alert those intending him harm”. He stated that in a “recent” case before the Tribunal, relocation was found not to be possible for Pashtuns. He referred to an RRT decision from 25 May 2004. It is not clear from the information he provided which decision he was referring to. The adviser went on to argue that Afghanistan remains unsafe and unstable. He referred to material from 2003 and 2004 in support of his argument. He stated that the situation in Afghanistan was unpredictable and unstable, with a regime which was not willing to protect its citizens, and he wanted the same considerations to be applied to the applicant’s situation. The adviser stated that what was happening in Afghanistan before, is now happening in Pakistan’s North West Frontier Province (NWFP). He referred to a few recent reports relating to violence in the region.
The Tribunal made a decision on 31 August 2011, which affirmed the delegate’s decision. After recounting the evidence before the Tribunal, the Tribunal gave findings and reasons which accepted that the applicant was a Pashtun from the Swat Valley in Northern Pakistan who was born and raised in Karachi, but had spent time with his family in the Swat Valley. It narrated the applicant’s claims in, it appears to me, fairly and in sufficiently comprehensive terms:
56.The applicant claims that he is a Pashtun from the Swat Valley in northern Pakistan. He claims that he was born and raised in Karachi but he spent time with his family in the Swat Valley. The applicant claims that members of his family in the Swat Valley were implicated in activities against the Taliban and he has been targeted by the Taliban for this reason. He claims that he is on a Taliban list of wanted persons and if he returns to Pakistan he will face life-threatening harm from the Taliban. The applicant claims that in Karachi he was an active member of the ANP. He claims he was targeted by political rivals in Karachi, particularly the MQM, and they extorted money from him. The applicant claims that Pashtuns and Pashtuns from Swat Valley are targeted by the MQM, religious fundamentalists, the Taliban, and other elements in society, including the authorities. He claims that if he returns to Pakistan he will be targeted by the Taliban, political opponents, religious fundamentalists, and other elements in society including the authorities, for reasons of political opinion and the political opinion attributed to him by the Taliban because of his family, his Pashtun race, and his membership of a particular social group, with that group possibly being ‘Pashtuns from Swat Valley’.
The Tribunal said that it accepted that the applicant is “a Pashtun with family connections in the Swat Valley in Pakistan. However, it has formed the opinion that the applicant fabricated his major claims to enhance his application”.
The Tribunal said that it was not satisfied that the applicant “was a political activist with the ANP in Pakistan or that he was a person of particular adverse interest to Taliban, the MQM, other religious or political groups or other elements in society including the authorities”. It then explained these conclusions.
The Tribunal’s conclusion about the fabrication of the applicant’s political claims appears to me to have been well-founded based on how the applicant had presented these claims, and his ignorance of “basic information” concerning the ANP.
The Tribunal also considered the applicant’s “other major claim, that he is a person of particular adverse interest to the Taliban in Pakistan because he was implicated in activities against the Taliban”. The Tribunal said that “the applicant did not present these claims clearly and comprehensively throughout the processing of his application”. It found that these claims also were fabricated and not credible.
The Tribunal also considered the applicant’s “broader claims” based on being a Pashtun from Swat Valley. Based on country information, it found that his fear that “he is at risk of harm by political groups, religious fundamentalists, or any other elements in society including the authorities” was not well-founded.
The Tribunal assessed the applicant’s claim that MQM members had extorted money from him. It noted contradictory evidence given by him about this. It accepted only “that criminals in Karachi extorted or attempted to extort money from the applicant”. It was not satisfied that he had been targeted by extortionists for a Convention reason, and found that he was “a victim of crime”. The Tribunal also considered whether the applicant would be denied protection against such criminal activities for a Convention reason, but was not satisfied that he had been denied protection “because he was a Pashtun, or for political reasons, or any other Convention related reason”. It appears to me that in this discussion the Tribunal made no error of law, and showed a correct appreciation of the application of the Convention definition in relation to fears of extortionists.
The Tribunal concluded:
67.The Tribunal has noted that there is widespread political and civil unrest in Karachi and elsewhere in Pakistan, including the Swat Valley. It accepts that persons in those locations face an increased risk of harm. However, the Tribunal is satisfied after considering the applicant’s individual circumstances, that he is not at risk of harm in Karachi, the Swat Valley, or elsewhere in Pakistan, for a Convention related reason.
68.Accordingly, and in view of the above findings, the Tribunal is not satisfied that the applicant faces a real chance of persecution in Pakistan for reasons of political opinion, race, membership of a particular social group, with that group possibly being ‘Pashtuns from Swat Valley’, or any other Convention reason.
The applicant now relies on an application filed in the Court on 4 October 2011. The application gave as the applicant’s address for service the same address as his former migration agent, and it appears to me that his agent also witnessed the supporting affidavit. I consider it likely that the agent assisted the applicant by formulating the grounds of his application. Whether this is the case or not, these grounds provide the only grounds which have been presented to the Court by the applicant. They state:
1.The tribunal committed error of law and or jurisdiction error when it failed to properly identify, assess and address the risk of harm in respect of the applicant’s particulars or social groups, failing to follow proper procedure steps/manner when dealing with social group.
Particular:
a. The tribunal failed to deal with the manner, social group stated in Dranichnikov/SZNVE and other cases.
2.The tribunal committed error of law and/or jurisdictional error when he rejected the applicant’s explanation, consistent with other evidence concerning the applicants, risk of persecution.
Particulars: the tribunal failed to assist if there were other instance to look.
3.The tribunal committed error of law and or jurisdictional error which the tribunal failed to contradict all the factors and whether in particular tense the applicant could relocated.
4.The tribunal committed error of law/and jurisdiction error, when he totally disregarded, that the applicant was member of ANP political party just because the applicant did not have necessary evidence.
Particulars: The tribunal commented that it had doubts as to whether the applicant was a politically active person in Pakistan. The tribunal commented that he appeared to have limited information regarding his former party, the ANP and he did not appear to have kept informed about the political events in Karachi. The tribunal commented that the Tribunal may find that the applicant has limited information regarding the ANP because he was not involved with the party.
In the present matter, the Tribunal is not satisfied that the applicant was a political activist with the ANP in Pakistan or that he was a person of particular adverse interest to the Taliban, the MQM, or other religious or political groups, or other elements in society including the authorities.
In my opinion, these grounds have no substance, and fail to identify any jurisdictional error affecting the Tribunal’s decision. They have not been further explained by written submission or oral submissions presented by the applicant to me or an amended application. The Court’s correspondence file indicates that the applicant has received legal advice both under the Court’s referral scheme and, according to documents submitted by the applicant, also from an experienced barrister instructed by his former agent.

I can find no substance for the general assertions in ground 1 that the Tribunal failed to address all the applicant’s refugee claims. In my opinion it endeavoured to do so, and fairly attempted to give rational content to how the applicant and his agent had presented his case. In my opinion, the Tribunal dealt with all the possible attributes of the applicant which might have brought him within a particular social group, and found that they would not expose him to a well-founded risk of persecution. I can find no error of the sort found by the High Court in Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389.
In relation to ground 2, I am unable to identify any error of law made by the Tribunal when it rejected parts of the applicant’s history. It appears to me that its assessment of his evidence was open to it, and was indeed a fair assessment of what appears to be the evidence before it.
I found ground 3 impossible to comprehend. The Minister’s representative suggested that it contended that the Tribunal made errors of law when finding that the applicant could relocate within Pakistan to avoid persecution. However, plainly, the Tribunal did not follow that path of reasoning, since it did not find that he had a well-founded fear of persecution in his home city of Karachi.
Ground 4 does not identify any arguable jurisdictional error, and is premised upon a misreading of the Tribunal’s decision. Its decision rejecting the applicant’s claimed fears based on membership of the ANP Party was based upon the applicant’s responses to questioning at the hearing, in which the applicant lacked “basic information” which was reasonably to be expected if his claims were true. This conclusion was not based upon the absence of corroborative documents, and was sufficiently founded upon ‘necessary evidence’, being its disbelief of the applicant.
For the above reasons, I am unable to find any substance in the grounds attached to the application.
It is also appropriate for me to address another matter, which was discussed with the applicant at the hearing.
The application was given a first return date on 1 November 2011. Shortly before that date, the applicant contacted the Minister’s solicitors and indicated that he would not be able to attend because he was in Queensland. I proceeded in his absence, and made directions allowing him an ample opportunity to take advice, and file further documents, and then to attend a hearing appointed for today.
It is clear that notice of these orders did come to his attention, although it is unclear how this occurred. I assume that the Minister’s representatives complied with my orders requiring them to give him notice. As I have noted, it is clear from the correspondence file of the Court that the applicant did receive legal advice, and was on notice of today’s hearing. He initially sought an adjournment or transfer of the matter, but attended the hearing today in Sydney and did not repeat these requests.
At the start of the hearing, I drew to the applicant’s attention a letter which was in the correspondence file of the court. This letter had been received by the Registry on 7 December 2011 from the applicant’s former agent. It is dated 4 December 2011, and attached what purports to be a statutory declaration signed by the applicant and dated 12 May 2011 together with a document in foreign script. The date of the statement was shortly after the application was filed in the Refugee Review Tribunal.
The agent’s letter to the Court suggests that these two documents had been sent to the RRT on 18 July 2011 and were ignored by it. However, there is no evidence tendered before the Court proving the truth of this. The contents of the Tribunal’s records as reproduced in the court book, including its “Statement of Decision and Reasons”, all suggest that no such statement was ever forwarded to it or received by it. The agent has not sworn an affidavit establishing the contrary, and I do not accept the truth of the mere assertions in this letter.
When I raised this suggestion with the applicant, he told me from the bar table that he had been told by his agent that the agent did not forward the statement to the Tribunal before it made its decision. On the evidence before me this appears most likely. There is no evidence showing whether this was a deliberate decision by the agent, to avoid the presentation of inconsistent evidence, or was the result of oversight. Whatever the reason, on the evidence before me I find that these documents were not, at any stage, presented to the Department of Immigration or the Tribunal by the applicant or his agent before it made the decision. Their existence on the file of the agent cannot, therefore, provide evidence that the Tribunal made a jurisdictional error by not having regard to their contents.
If there was any default by the agent, the evidence certainly would not persuade me that there was anything more than negligence in representing the applicant before the Tribunal. There is no evidence or suggestion in the evidence of a fraud on the applicant or on the procedures of the Tribunal of the nature addressed by the High Court in SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189.
The applicant’s oral submissions today repeated the erroneous contention that the Tribunal had made inconsistent findings about relocation, which I have addressed above.
Otherwise, he was critical of his former agent, including his agent’s failure to obtain a bridging visa allowing him permission to work. However, as I have informed the applicant, I am unable to investigate matters which are irrelevant to the validity of the Tribunal’s decision. I informed the applicant that he had the right to raise them with the Department of Immigration or the Migration Agents Registration Authority.
Taking into account all the evidence before me and the applicant’s submissions, I am not satisfied that the Tribunal’s decision was affected by any jurisdictional error.
I must, therefore, dismiss the application.

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Smith FM

Date: 28 May 2012